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LICENSE AGREEMENT (EULA)

PLEASE READ CAREFULLY: IF YOU HAVE ANOTHER VALID, SIGNED AGREEMENT WITH TIBCO
WHICH APPLIES TO THE SPECIFIC SOFTWARE, EQUIPMENT, CLOUD SERVICES OR HOSTED
SERVICES, YOU WILL BE DOWNLOADING, ACCESSING OR OTHERWISE RECEIVING
(INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS THE "PRODUCTS"), THAT OTHER
AGREEMENT SHALL CONTROL YOUR USE OF SUCH PRODUCTS AND, IF APPLICABLE, RELATED
SERVICES (AS DEFINED BELOW). OTHERWISE, BY USING, DOWNLOADING, INSTALLING,
COPYING, OR ACCESSING PRODUCTS, OR BY CLICKING ON "I ACCEPT" ON OR ADJACENT TO
THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, YOU HEREBY AGREE TO BE BOUND
BY AND ACCEPT THE TERMS OF THIS AGREEMENT ("ACCEPTANCE"). THIS AGREEMENT SHALL
ALSO APPLY TO ANY MAINTENANCE OR CONSULTING SERVICES ("SERVICES") YOU ACQUIRE
FROM TIBCO RELATING TO THE PRODUCT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT:
1) DOWNLOAD OR INSTALL THE SOFTWARE, OR 2) ACCESS OR REGISTER TO ACCESS ANY
CLOUD SERVICES OR HOSTED SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, AND
DELIVERY OF THE PRODUCTS IS AFFECTED, DO NOT USE, DOWNLOAD, INSTALL, COPY, OR
ACCESS THE PRODUCTS. PROMPTLY RETURN THE PRODUCT WITH PROOF OF PURCHASE TO THE
PARTY FROM WHOM YOU ACQUIRED IT AND OBTAIN A REFUND OF THE AMOUNT YOU PAID, IF
ANY. IF YOU DOWNLOADED ANY SOFTWARE, CONTACT THE PARTY FROM WHOM YOU ACQUIRED
IT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR PERSONS,
COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL
AUTHORITY TO BIND EACH PERSON, COMPANY, OR LEGAL ENTITY TO THIS AGREEMENT. THIS
AGREEMENT IS ENTERED INTO BY AND BETWEEN TIBCO SOFTWARE INC. AND ANY ENTITIES,
REGARDLESS OF CORPORATE STATUS, CONTROLLED BY, CONTROLLING, OR UNDER COMMON
CONTROL WITH TIBCO SOFTWARE INC. (COLLECTIVELY, "TIBCO", "WE, "US" OR "OUR") AND
YOU, YOUR CO-WORKERS, YOUR EMPLOYEES, AGENTS AND CONTRACTORS AND ANY OTHER
PERSON OR PERSONS, COMPANY OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU ARE
ACCEPTING THIS AGREEMENT (COLLECTIVELY, "CUSTOMER", "YOU" OR "YOUR"). FURTHER,
YOU WARRANT AND AGREE THAT YOU ARE NOT (A) A CITIZEN, NATIONAL OR RESIDENT OF,
AND ARE NOT UNDER THE CONTROL OF, THE GOVERNMENT OF: CUBA, IRAN, NORTH KOREA,
SUDAN, SYRIA, OR ANY OTHER COUNTRY TO WHICH THE UNITED STATES HAS PROHIBITED
EXPORT, OR (B) LISTED ON THE UNITED STATES TREASURY DEPARTMENT'S LISTS OF
SPECIALLY DESIGNATED NATIONALS, SPECIALLY DESIGNATED TERRORISTS, OR SPECIALLY
DESIGNATED NARCOTIC TRAFFICKERS, OR LISTED ON THE UNITED STATES COMMERCE
DEPARTMENT'S TABLE OF DENIAL ORDERS. YOU FURTHER WARRANT AND AGREE THAT YOU WILL
NOT (1) DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PRODUCTS OR MATERIALS,
DIRECTLY OR INDIRECTLY, TO PERSONS ON THE ABOVE-MENTIONED LISTS, (2) USE THE
PRODUCTS OR MATERIALS FOR, AND WILL NOT ALLOW THE PRODUCTS OR MATERIALS TO BE
USED FOR, ANY PURPOSES PROHIBITED BY UNITED STATES OR OTHER APPLICABLE LAW,
INCLUDING, WITHOUT LIMITATION, FOR THE DEVELOPMENT, DESIGN, MANUFACTURE OR
PRODUCTION OF NUCLEAR, CHEMICAL OR BIOLOGICAL WEAPONS OF MASS DESTRUCTION, AND
(3) DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PRODUCTS OR MATERIALS,
DIRECTLY OR INDIRECTLY, TO THE ABOVE-MENTIONED COUNTRIES OR TO CITIZENS,
NATIONALS OR RESIDENTS OF THOSE COUNTRIES. 1. Governance. Upon your Acceptance,
the following shall govern your use of the Products and Services, except to the
extent all or any portion are (a) subject to a separate written, duly executed
agreement, or (b) also subject to the terms of an Addendum at the end of this
Agreement, in which case the terms of such Addendum shall control over
inconsistent terms in this Agreement. 2. Definitions. Capitalized terms used but
not defined herein shall have the meanings set forth at
http://www.tibco.com/software/parametersdefinitions.jsp and
http://www.tibco.com/software/processor.jsp. "Order Form" means any purchase
order or similar document, written agreement, or a web store or website order or
registration requesting Products or Services. "Purchase Date" means the date the
Order Form is accepted by us and in the case of a web store or web site
transaction, the date of your download or access of a Product. If proprietary
source code is included as part of the standard delivery of a Product and is not
subject to open source license terms, use of such source code is controlled by
the terms of this Agreement. "Updates" means Product bug fixes, enhancements,
and updates, if and when made generally available by us as part of Maintenance.
3. Alpha, Beta, Developer Evaluation and Evaluation Licenses. If the Products
are provided or accessed for demonstration or evaluation purposes or for alpha
or beta testing, then you agree, subject to the license grant in Section 4 below
and to the terms and conditions of this Agreement, (a) to use the Products
solely for such purposes, (b) that the Products will not be used or deployed in
a production or development environment, and (c) that such use shall
automatically terminate upon the earlier of (i) thirty (30) days from the date
you receive the right to install or access the Product, (ii) your receipt of
notice of termination from us, or (iii) you no longer have access to the , Cloud
Services or the Hosted Services. If the Products are provided or accessed for
Developer Evaluation, then you agree (a) to use the Products solely for
development evaluation purposes, (b) that such use shall not be in a Production
environment and (c) that such use shall automatically terminate upon the earlier
of (i) ninety (90) days from the date you receive the right to install or access
the Product, (ii) your receipt of notice of termination from us, or (iii) you no
longer have access to the Cloud Services or Hosted Services 4. License Grant.
The Products are the property of TIBCO or its licensors and are protected by
copyright and other laws. While TIBCO continues to own or have license rights to
the Products, we hereby grant you a limited, non-transferable, non-exclusive
license, subject to the terms and conditions of this Agreement, to use the
Number of Units set forth in the Order Form solely for your internal business
use. 5. License Term. The term of each license for a Product shall be either
perpetual or limited as designated on an Order Form. If a Product is licensed on
a limited term basis, then, unless otherwise set forth in an Order Form, the
term shall commence on the Purchase Date and have the following duration: -
Alpha, Beta and Evaluation - thirty (30) days - Developer Evaluation - ninety
(90) days - Hosted Services - one (1) year - Cloud Services - thirty (30) days,
one (1) year minimum - Software purchases on a term limited basis - three (3)
years If you originally registered to download or access a Product for Alpha,
Beta or Evaluation purposes, upon re-registration you may be permitted one (1)
additional term. On expiration of a limited term, you must immediately cease
using and return or destroy all copies of the Products and related Confidential
Information. 6. Delivery. Products are delivered electronically, and delivery
deemed complete when duly made available to you. 7. Equipment Lease or Purchase.
A. Lease. The term of each Equipment Lease shall be limited as set forth in an
Order Form. However, the first forty-five (45) days from the initial term
Purchase Date shall be considered the first month of the term and charged as
such. Not less than sixty (60) days prior to expiration of the term, and
provided that you are not then in breach of any term of this Agreement, TIBCO
will send you a renewal invoice setting forth the payment terms for an
additional Equipment Lease term of one (1) year. In order to renew such
Equipment Lease, you must provide TIBCO with full payment of such lease renewal
fee no later than thirty (30) days prior to expiration of the term. Except as
otherwise agreed upon in writing by the parties, your failure to provide the
Lease Renewal payment in a timely manner will result in termination of the
Equipment Lease term, in accordance with the terms of this Agreement. B.
Purchase. When we accept your order to purchase the Equipment, we agree, subject
to the terms and conditions of this Agreement, to sell you the Equipment
described in the Order Form. We transfer all title and risk to the hardware
component of the Equipment when we or our agent ships the Equipment.
Furthermore, we reserve, and you consent to our reservation of, a purchase money
security interest in the Equipment until we receive all fees set forth in the
Order Form. For a feature, conversion or upgrade involving the removal of parts
in connection with the Equipment, which parts become our property, or for the
replacement of Equipment or components thereof pursuant to the Equipment
Maintenance Program Guide, we reserve, and you consent to our reservation of, a
security interest in the Equipment until we receive payment of all fees due and
the removed parts. You hereby authorize us to file appropriate documents to
permit the perfection of our purchase money security interest and you will
provide reasonable assistance to perfect such interests. C. Equipment Insurance.
If you are leasing Equipment, you shall procure and continuously maintain and
pay for (i) all risk insurance against loss of and damage to the Equipment for
not less than the full replacement value of each Unit, naming us as loss payee,
and (ii) public liability and property damage insurance insuring against third
party personal and property damage in respect of the use and operation of the
Equipment in an amount not less than One Million Dollars ($1,000,000 USD) per
occurrence. Each insurance policy shall name us as an additional named insured
and as a loss payee, and shall provide that there shall be no recourse against
us for payment of premiums or other amounts. The insurance shall be in such form
and with such company or companies as shall be reasonably acceptable to us.
Promptly, but in no event later than thirty (30) days from the Purchase Date,
you shall provide to us a certificate evidencing such insurance. You hereby
appoint us as your attorney-in-fact to make claim for, receive payment of, and
execute and endorse all documents, checks, or drafts received in payment for any
loss or damage to the Equipment under any such insurance policy. Failure to
provide such certificate of insurance in a timely manner will be considered a
breach of this Agreement. D. Equipment Delivery. For delivery of the TIBCO
Messaging Appliance(TM), title is deemed to transfer upon delivery by our agent
to our designated freight carrier, FCA Ontario, Canada (Incoterms 2000). For
delivery of all other Equipment, title is deemed to transfer upon delivery by us
to our designated freight carrier, FCA TIBCO's premises (Incoterms 2000). All
freight, insurance and other shipping expenses shall be paid to the freight
carrier by us on your behalf. You will be invoiced for shipping and handling
charges paid by us to the freight carrier. Delivery is subject to the
availability of Equipment. 8. Hosted Services. We shall use commercially
reasonable efforts to make the Hosted Services you have purchased available 24
hours a day, 7 days a week, except for: (a) planned downtime under our direct
control (of which we shall give at least 8 hours notice via the Hosted Services
and which we shall schedule to the extent practicable during the weekend hours
from 6:00 p.m. Pacific Standard Time Friday to 3:00 a.m. Pacific Standard Time
Monday), (b)third party service provider 's downtime to the extent we are
notified by third party service providers of planned downtime (of which we shall
provide such notice to you via the Hosted services as soon we can reasonably do
so), or (c) any unavailability caused by circumstances beyond our reasonable
control, including, without limitation, acts of God, acts of government, flood,
fire, earthquakes, civil unrest, acts of terror, strikes or other labor
problems, internet service or third party hosting provider failures or delays
("Force Majeure"). Hosted Services are provided in accordance with applicable
laws and government regulations. 9. Cloud Services. Specific offerings for
TIBCO's Cloud Services can be found at -
http://www.tibco.com/multimedia/cloud-services-program-guide_tcm8-18725.pdf 10.
Hosted Services and Cloud Services Restrictions. A. In connection with your use
of Hosted Services or Cloud Services, you shall, in addition to the restrictions
in 11.D and11.E below (i) be responsible for your users' compliance with this
Agreement, (ii) be solely responsible for the accuracy, quality, integrity and
lawfulness of and the means by which you acquire and disclose your data, (iii)
not store or transmit infringing, libelous, or otherwise unlawful or tortious
material or malicious code, nor store or transmit material in violation of
third-party privacy rights, (iv) not sell, resell, rent or lease the Hosted
Services, or Cloud Services, (v) use commercially reasonable efforts to prevent
the unauthorized access to or use of the Hosted Services or Cloud Services, and
notify us promptly of any such unauthorized access or use, (vi) not interfere
with or disrupt the integrity or performance of any Provider services or
third-party data contained there, (vii) not attempt to gain unauthorized access
to the Hosted Services, Cloud Services or their related systems or networks, and
(vii) use the Hosted Services, or Cloud Services only in accordance with any
applicable Documentation and all applicable laws and government regulations.
Hosted Services or Cloud Services may be subject to other limitations, such as,
for example, limits on disk storage space, on the number of calls or number of
users, third party terms of use, etc., specified in the applicable
Documentation, web store or website. In the event that you receive any notice
claiming that our content, in connection with the Hosted Services or Cloud
Services or any Provider services violates a third party's rights including,
without limitation, notices pursuant to the Digital Millennium Copyright Act,
you will promptly forward such notice to us, with a courtesy copy to TIBCO's
General Counsel. B. You represent and warrant that you will not use Hosted
Services or Cloud Services to promote any illegal activities or post any
materials in violation of any law. In addition, in using and accessing Hosted
Services, or Cloud Services, you shall not use any third party software in
connection with a Provider's or TIBCO service in any manner that requires,
pursuant to the license applicable to such software, that any Provider or TIBCO
property or services be: (1) disclosed or distributed in source code form; (2)
made available free of charge to recipients; or (3) modifiable without
restriction by recipients. You represent and warrant that no software or content
provided by you or your users in connection with your use of Hosted Services or
Cloud Services will contain any malicious or hidden mechanism or code for the
purpose of damage or corrupting the Hosted Services, Cloud Services or the
Provider service. C. You are solely responsible for adequate security,
protection and backup of your data and content. We are not responsible for
Provider services, unauthorized access to your data or content, or the deletion,
destruction, damage, loss or failure to store any of your content or other data
that you submit or use in Hosted Services or Cloud Services. 11. Restrictions.
A. You shall not (a) make more copies than the Number of Units (except for a
reasonable number of copies for archival and disaster recovery purposes) or use
any unlicensed versions of the Software; (b) use any Software not listed in an
Order Form, even if such unlicensed software is made available to you as part of
the general delivery mechanism for the Products; (c) provide access to the
Products to anyone other than employees, contractors, or consultants who agree
in writing to be bound by terms at least as protective of TIBCO as those in this
Agreement; (d) sublicense, transfer, assign, distribute to any third party,
pledge, lease, rent, or commercially share the Products or any of your rights
under this Agreement (for the purposes of the foregoing a change in control of
your company is deemed to be an assignment); (e) use the Products for purposes
of providing a service bureau, including, without limitation, providing
third-party hosting, or third-party application integration or application
service provider-type services, or any similar services; (f) use the Products in
connection with ultrahazardous activities, or any activity for which failure of
the Products might result in death or serious bodily injury to you or a third
party; or (g) directly or indirectly, in whole or in part, modify, translate,
reverse engineer, decrypt, decompile, disassemble, make error corrections to,
create derivative works based on, or otherwise attempt to discover the source
code or underlying ideas or algorithms of the Products. You may engage in such
conduct as is necessary to ensure the interoperability of the Software as
required by law, provided that prior to commencing any decompilation or reverse
engineering of any Software, you agree to observe strict obligations of
confidentiality and provide us reasonable advance written notice and the
opportunity to assist with or conduct such activity on your behalf and at your
expense. B. Any additional license parameters applicable to Products are set
forth at http://www.tibco.com/software/parametersdefinitions.jsp. 12.
Proprietary Notices. The Products, Documentation and Materials are proprietary
to TIBCO and its licensors and protected by applicable U.S. and international
patent, copyright, trademark and trade secret laws. TIBCO and its licensors
shall retain ownership in the Products, Documentation and Materials; all
derivatives thereof (in whole or part); and any intellectual property or other
rights embodied therein. All proprietary notices incorporated in or affixed to
any Products, Documentation or Materials shall be duplicated by you on all
copies of the Products, Documentation, or Material, as applicable, and shall not
be altered, removed or obliterated. Lease Equipment is, and shall at all times
be and remain our sole and exclusive property; you have no right, title or
interest therein or thereto except as expressly set forth in this Agreement. You
shall keep the Lease Equipment free and clear of all levies, liens and
encumbrances and shall immediately notify us in writing of any circumstances
with respect to the location of the Equipment which will adversely affect it or
our security interests therein. You shall not install, attach, mount or
otherwise house the Lease Equipment in a manner that would render it a fixture
under applicable law within the jurisdiction in which the Lease Equipment is
located. 13. Extraordinary Corporate Event. To the extent you or your successors
or assigns enter into an Extraordinary Corporate Event after the Purchase Date,
this Agreement shall not apply to those additional users, divisions or entities
which were added to your organization as a result of the Extraordinary Corporate
Event until those additional users, divisions or entities are added to this
Agreement by way of a written amendment signed by our respective duly authorized
officers. 14. Maintenance. A. If you acquired Maintenance from a TIBCO
authorized third party, Section 14(B) does not apply. THE TERMS OF ANY
MAINTENANCE SERVICES OR RELATED WARRANTY SHALL BE AS AGREED BY AND BETWEEN YOU
AND THE TIBCO AUTHORIZED THIRD PARTY. WE PROVIDE NO WARRANTY TO YOU WITH RESPECT
TO MAINTENANCE SERVICES PROVIDED BY ANY THIRD PARTY. B. Maintenance, if ordered
(or if included in Lease, Cloud Services or Hosted Services), is provided under
the policies set forth in the Maintenance Program Guide in effect at the time
Maintenance services are provided. The policies set forth in the Maintenance
Program Guide and the Equipment Maintenance Program Guide, which are hereby
incorporated into this Agreement, are subject to change at our discretion;
however, the level of Maintenance service provided by us will not be materially
reduced if we change the policies during any twelve (12) month period for which
Maintenance fees have been paid by you. The current version of the Maintenance
Program Guide can be accessed at
http://www.tibco.com/services/support/default.jsp and the Equipment Maintenance
Program Guide can be accessed at
http://www.tibco.com/multimedia/equipment-maintenance-program-guide_tcm8-16160.p
df. C. Any Updates provided by us or by our authorized resellers or distributors
(if applicable) are subject to the terms and conditions of this Agreement. To
receive Maintenance, all Products must be properly licensed and Maintenance fees
paid. We are under no obligation to provide Maintenance in the event that
Maintenance fees have not been properly and timely paid in full. 15. Consulting
Services. A. You may procure installation, configuration, training or other
consulting or support services ("Consulting Services") either in an Order Form,
a purchase order (as set forth in the purchasing guidelines located at
http://www.tibco.com/multimedia/purchase-order-guidelines_tcm8-5446.pdf ) or a
work order executed by both parties ("Work Order"). We will use commercially
reasonable efforts to perform such Consulting Services. Unless otherwise
expressly agreed in a Work Order, all Consulting Services shall be: (i)
performed on a time and materials basis ("T&M"), with meals, lodging, travel and
other reasonably necessary out-of-pocket expenses ("Expenses") invoiced in
addition to T&M fees, (ii) deemed accepted upon delivery, and (iii) subject to
the Work Order Terms defined at
http://www.tibco.com/resources/company/customer-relations/work-order-terms.pdf
and incorporated hereto. B. We hereby grant you a nonexclusive license to use
the Materials (and a reasonable number of copies thereof) solely for your
internal operations in conjunction with your use of the Products. Materials
obtained during your attendance at or from your purchase of virtual training
courses, unless otherwise agreed in an Order Form, are limited to the one (1)
copy received by each attendee and may not be duplicated. C. In the event that
you are purchasing a license to specific training course content as set forth in
an Order Form, the content of each such training course shall constitute a
Product for the purpose of this Agreement. Subject to your payment of fees due,
you are granted a limited, non-transferable and non-exclusive license to use,
modify, translate, create derivative works from, reproduce and distribute the
Product solely for your internal business use: provided, however, that the
copyright notices and any other legends of ownership are reproduced on each
complete or partial copy of such Product. We retain all right, title and
interest in the Product, excluding your Confidential Information. All complete
or partial copies of the Product in any form shall be subject to the same terms
as the original copy. The term of each license and level of annual Maintenance
for the Product shall be as set forth in the Order Form. 16. Limited Warranty.
A. If you obtained Software directly from us, we warrant for a period of thirty
(30) days from the Purchase Date that (i) the media on which the Software is
furnished will be free of defects in materials and workmanship under normal use;
and (ii) the Software will substantially conform to its Documentation. This
limited warranty extends to you personally and is not transferable. Your sole
and exclusive remedy and the entire liability of TIBCO and its licensors under
this limited warranty will be, at our option, to repair or replace (with respect
to the affected Software product), or refund the Software license fee. In the
event of a refund, this Agreement shall terminate solely with respect to the
affected Software product, and you shall immediately cease all use of and return
or destroy all copies of such Software. B. THIS WARRANTY DOES NOT APPLY TO ANY
SOFTWARE WHICH (I) IS LICENSED FOR ALPHA, BETA, EVALUATION, TESTING OR
DEMONSTRATION PURPOSES FOR WHICH WE DID NOT RECEIVE A LICENSE FEE; (II) HAS BEEN
ALTERED OR MODIFIED (UNLESS BY US); (III) HAS NOT BEEN INSTALLED, OPERATED,
REPAIRED, OR MAINTAINED IN ACCORDANCE WITH INSTRUCTIONS SUPPLIED BY US; (IV) HAS
BEEN SUBJECTED TO ABNORMAL PHYSICAL OR ELECTRICAL STRESS, MISUSE, NEGLIGENCE, OR
ACCIDENT; OR (V) IS USED IN VIOLATION OF ANY OTHER TERM OF THIS AGREEMENT. YOU
AGREE TO PAY US FOR ANY MAINTENANCE OR CONSULTING SERVICES PROVIDED BY US
RELATED TO A BREACH OF THE FOREGOING ON A T&M AND EXPENSE BASIS. IF YOU HAVE
OBTAINED THE SOFTWARE FROM A RESELLER OR DISTRIBUTOR, THE TERMS OF ANY WARRANTY
SHALL BE SOLELY AS PROVIDED BY SUCH RESELLER OR DISTRIBUTOR; WE PROVIDE NO
WARRANTY TO YOU WITH RESPECT TO SUCH SOFTWARE. C. EXCEPT AS SPECIFIED IN THIS
LIMITED WARRANTY, THE PRODUCTS AND SERVICES ARE PROVIDED "AS IS". ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A
COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT
ALLOWED BY APPLICABLE LAW. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY
PRODUCTS OR SERVICES, THAT THE PRODUCTS WILL OPERATE WITHOUT ERRORS, PROBLEMS OR
INTERRUPTIONS, THAT ERRORS OR BUGS WILL BE CORRECTED, OR THAT THE PRODUCT
FUNCTIONALITY OR SERVICES WILL MEET YOUR REQUIREMENTS. NO TIBCO DEALER,
DISTRIBUTOR, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS,
EXTENSIONS OR ADDITIONS TO THIS WARRANTY ON TIBCO'S BEHALF. 17. Indemnity. If
you obtained the Software from us directly, then we agree at our own expense to
defend or, at our option, to settle, any claim or action brought against you to
the extent it is based on a claim that the unmodified Software infringes any
patent issued by the United States, Canada, Australia, Japan, or any member of
the European Union, or any copyright, or any trade secret of a third party. We
will indemnify and hold you harmless from and against any damages, costs and
fees reasonably incurred (including reasonable attorneys' fees) that are
attributable to such claim or action and which are assessed against you in a
final judgment provided that you promptly notify us in writing of such claim, we
have the exclusive right to control such defense and/or settlement, and you
provide reasonable assistance (at our expense) in the defense thereof. In no
event shall you settle any claim, action or proceeding without our prior written
approval. In the event of any such claim, litigation or threat thereof, we, at
our sole option and expense, shall (a) procure for you the right to continue to
use the Software, or (b) replace or modify the Software with functionally
equivalent software. If such license or modification is not commercially
reasonable (in our sole reasonable opinion), we may cancel this Agreement with
respect to the affected Software product upon sixty days prior written notice to
you and refund to you the unamortized portion of the associated license fees
paid by you to us based on a five-year straight-line depreciation. This Section
states our entire liability with respect to the infringement of any intellectual
property rights, and you hereby expressly waive any other liabilities or
obligations we have with respect thereto. The foregoing indemnity shall not
apply to the extent that (x) any claim is based on or attributable to
modifications made by you to the Software, or portions thereof, (y) such claim
would have been avoided by use of the then-current release version of the
Software, or (z) your continued allegedly infringing activity after being
provided with modifications that would have avoided the alleged infringement.
18. Limitation of Liability. A. EXCEPT AS PROVIDED UNDER THE INDEMNITY ABOVE; OR
IN CONNECTION WITH THE MISAPPROPRIATION OF THE OTHER PARTY'S INTELLECTUAL
PROPERTY, INCLUDING, WITHOUT LIMITATION, TRADE SECRETS; DAMAGES FOR BODILY
INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; OR INTENTIONAL OR
GROSS NEGLIGENCE (THE "EXCLUDED MATTERS"), IN NO EVENT WILL EITHER PARTY OR
TIBCO'S LICENSORS BE LIABLE FOR ANY LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA,
LOST REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, DAMAGE TO
REPUTATION, BUSINESS INTERRUPTION, DOWNTIME COSTS, OR ANY OTHER INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR TYPE OF
DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE
PRODUCTS, OR THE PROVISION OF ANY MAINTENANCE , CONSULTING SERVICES, EVEN IF A
PARTY HAS BEEN ADVISED OR WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY
OF SUCH COSTS, EXPENSES OR DAMAGES. B. EXCEPT FOR THE EXCLUDED MATTERS, IN NO
EVENT SHALL A PARTY'S LIABILITY TO THE OTHER, WHETHER IN CONTRACT, TORT
(INCLUDING ACTIVE OR PASSIVE NEGLIGENCE), BREACH OF WARRANTY, CLAIMS BY THIRD
PARTIES OR OTHERWISE, EXCEED THE GREATER OF FIFTY THOUSAND DOLLARS ($50,000 USD)
OR THE PRICE PAID BY YOU UNDER THE APPLICABLE ORDER FORM. C. THE FOREGOING
LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY
FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT
ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT ALLOWED BY LOCAL LAW, THESE
LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING
NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN
CONTRACT, TORT OR OTHERWISE. 19. Confidentiality. A. "Confidential Information"
means any information disclosed by either party, whether or not marked,
including, without limitation, the terms of this Agreement; the Products;
Materials; individual contact information provided by either party; Product or
related performance test results derived by you, including but not limited to
benchmark test results; and your Protected Data (as defined in Section B below)
and Output. Each party agrees to protect Confidential Information in the same
manner as it protects its own Confidential Information (but using no less than a
reasonable degree of protection) and shall only disclose Confidential
Information to those with a need to know that information and who have agreed in
writing to be bound by terms at least as protective as those contained in this
Agreement. Information will not be deemed Confidential Information if (i)
available to the public other than by a breach of a confidentiality obligation,
(ii) rightfully received from a third party not in breach of a confidentiality
obligation, (iii) independently developed by one party without use of the
Confidential Information of the other; (iv) known to the recipient at the time
of disclosure (other than under a separate confidentiality obligation); or (v)
produced in compliance with applicable law or court order, provided the other
party is given reasonable advance notice of the obligation to produce
Confidential Information. Each party agrees to indemnify the other for any
damages (including reasonable expenses) the other may sustain resulting from the
unauthorized use and/or disclosure of the other's Confidential Information. The
parties further agree that money damages would not be a sufficient remedy for a
breach of confidentiality. The parties shall be entitled to seek injunctive or
other equitable relief without the necessity of posting a bond even if otherwise
normally required. Such injunctive or equitable relief shall not be the
exclusive remedy for any breach of confidentiality, but shall be in addition to
all other rights and remedies available at law or in equity. B. To the extent we
are exposed to individual personal data owned or otherwise held by you during
the provision of Hosted Services, Cloud Services, or Services, which is subject
to various data protection laws and/or regulations ("Protected Data"), we agree
to treat such Protected Data in accordance with the Customer Privacy and
Security Statement set forth at
http://www.tibco.com/customer_privacy_security_statement.jsp (the "Statement").
The policies and procedures set forth in the Statement as well as those set
forth in the Data Protection Policy Statement at
http://www.tibco.com/resources/data_protection_statement.pdf are in place to
meet our obligations for the protection, integrity and confidentiality of any
Protected Data which exceed our standard obligations to safeguard Confidential
Information. C. Confidential Information shall remain the sole property of the
disclosing party, and each party acknowledges and agrees that it does not
acquire any rights therein. Use by a recipient of Confidential Information for
the purposes contemplated under this Agreement, including, but not limited to,
any configuration or use by you of Products or Materials shall not affect or
diminish the disclosing party's rights, title and interest in and to
Confidential Information. D. We may use any individual contact information
provided by you or your users for support, product information and other
business to business communications in connection with this Agreement. In the
event you or your users wish to opt-out from receiving such communications, you
or your users should do so on the web store or website page where you originally
submitted provided your information or at
http://forms2.tibco.com/unsubscribe/u/5042/768537d8eeb3af5338448782d1fa356e.
Please note that communications may still be transmitted after the opt-out
request has been submitted but before it has been processed. E. You acknowledge
and agree that any feedback, suggestions, comments, improvements, modifications
and other information (including any ideas, concepts, "know-how" or techniques
contained therein) that you provide to us about our Products or their
performance (collectively, "Feedback") shall not be deemed as your Confidential
Information and may be used, disclosed, disseminated and/or published by us for
any purpose, including developing, manufacturing and marketing products
incorporating Feedback, without obligation of any kind to you, and you waive any
rights whatsoever in or to all Feedback. 20. Export. Products, Documentation,
Materials and related technical data, are subject to U.S. export control laws,
including without limitation the U.S. Export Administration Act and its
associated regulations and may be subject to export or import regulations of
other countries. You agree that you will not nor permit your users to export or
re-export the Licensor Software, Documentation and Materials in any form in
violation of any applicable export or import laws of any jurisdiction. 21.
Government Use. If the Products or Services are being or have been acquired with
U.S. Federal Government funds, or you are an agency, department, or other entity
of the United States Government ("Government"), the use, duplication,
reproduction, release, modification, disclosure or transfer of the Software,
Maintenance or Services, or any related documentation of any kind, including
technical data, or manuals, is restricted in accordance with Federal Acquisition
Regulation 12.212 for civilian agencies and Defense Federal Acquisition
Regulation Supplement 227.7202 for military agencies. The Products and Services
are COMMERCIAL ITEMS AS DEFINED BY THE FEDERAL ACQUISITION REGULATION. Use by
the Government is further restricted according to the terms of this Agreement
and any amendment hereto. 22. Entire Agreement. This Agreement, and any terms
which are incorporated by written reference (including written reference to
information contained in a URL, Documentation or reference policy) constitutes
the entire agreement between the parties with respect to the use of the Products
and Services, and supersedes all proposals, oral or written, and all other
representations, statements, negotiations and undertakings relating to the
subject matter hereof. All orders of Products or Services by you to us shall be
deemed to occur, with or without reference, under the terms of this Agreement,
unless expressly superseded by a signed written agreement between the parties.
Except for additional terms you have agreed to in connection with our web stores
or web sites, none of the terms of the Order Form (other than the product names,
Number of Units, level of Maintenance, description of Consulting Services, and
fees due in connection therewith) shall apply for any reason or purpose
whatsoever, regardless of any statement on any Order Form to the contrary.
Neither the license to use granted in this Agreement nor the obligation to pay
license fees are dependent upon the performance by any party of any Consulting
Services or the supply of any other software program or product. 23.
Termination. A. This Agreement and all Order Forms shall automatically terminate
if: (i) either party files for bankruptcy, or otherwise goes into receivership,
becomes insolvent or makes an assignment for the benefit of creditors; or (ii) a
writ of attachment or execution is levied on the Equipment (where we are lessor)
and is not released or satisfied within ten (10) days thereafter, or (iii) where
we are lessor or in a Purchase where payment in full to us has not been made, if
a receiver is appointed in any proceeding or action to which you are a party
with authority to take possession or control of the Equipment. In all cases, the
Equipment shall be promptly returned to us and not be treated as your asset. B.
Maintenance or Consulting Services may be terminated: (i) by either party upon a
default of the other, such default remaining uncured for fifteen (15) days from
written notice from the non-defaulting party; (ii) upon the filing for
bankruptcy or insolvency of the other party, (iii) by either party upon prior
written notice at least sixty (60) days prior to the end of any annual
Maintenance term; or (iv) by you for Consulting Services, upon ten (10) days
prior written notice or (e) by us for Consulting Services upon thirty (30) days
prior written notice. Termination of Maintenance or Consulting Services shall
not terminate this Agreement. C. In the event of a termination, for any reason,
of TIBCO Provider service accounts upon which we rely to provide Hosted Services
to the extent you have pre-paid us fees for Hosted Services to us, we will
refund, as of the date of notice of termination from Provider to us, for the
unearned pro-rata portion of the prepaid fees. D. You may terminate this
Agreement in its entirety at any time, in regard to Software, by destroying all
copies of the Software. We may terminate this Agreement at any time, in regard
to Software provided to you for evaluation or alpha/beta purposes. In the case
of an evaluation of Equipment, where we exercise our right to terminate the
Lease for a reason other than your breach of the Agreement, and you have
pre-paid fees for the month in which our termination occurs, we will refund the
unearned monthly pro-rated fee to you within thirty (30) days following our
receipt of the returned Equipment. E. If a license, Cloud Services, Hosted
Services or Lease under this Agreement terminates or expires, or upon
termination of this Agreement in its entirety for any reason, you shall (i)
cease using the Products, Documentation, and related Confidential Information,
and (ii) return or notify us in writing within thirty (30) days after
termination that you have destroyed any Software (excluding Equipment),
Documentation, related Confidential Information, and all copies thereof, whether
or not modified or merged into other materials. Equipment shall be returned in
good repair, condition and working order (ordinary wear and tear resulting from
proper use thereof excepted), by delivering the Equipment to our designated
carrier. You are responsible for all costs associated with de-installation of
equipment and returning the Equipment in accordance with the Equipment Return
Guidelines available at
http://www.tibco.com/resources/equipment_return_guidelines.pdf. F. Termination
of this Agreement, any license, Cloud Services, Hosted Services or Lease, or any
Order Form shall not limit either party from pursuing other remedies available
to it, including injunctive relief, nor shall such termination relieve you of
your obligation to pay all fees that have accrued or are otherwise owed by you
under this Agreement. Except as set forth in sections entitled "Termination",
"Limited Warranty" or "Indemnity", all fees paid under or in connection with
this Agreement are non-refundable and no right of set-off exists. The parties'
rights and obligations under this section and sections entitled "Limited
Warranty", "Indemnity", "Limitation of Liability", "Proprietary Notices",
"Confidentiality", "General", "Governing Law" and your warranties in connection
with Hosted Services or Cloud Services, shall survive the expiration or earlier
termination of this Agreement. 24. Open Source Software. If you use any third
party software not supplied by us, including any open source software, in
conjunction with any Product, you must ensure that such use does not require any
of the following, pursuant to the terms of such software: (i) disclosure or
distribution of any Product in source code form; or (ii) licensing of any
Product for the purpose of making derivative works; or (iii) redistribution of
any Product at no charge. For the avoidance of doubt, you may not combine
Product with any software licensed under any version of or derivative of the GNU
General Public License ("GPL") in any manner that could cause, or could be
interpreted or asserted to cause, the Product or any modifications to the
Product to become subject to the terms of the GPL. 25. Special Product
Provisions. Software products TIBCO BusinessEvents(R), TIBCO Collaborative
Information Manager(TM), TIBCO ActiveMatrix(R) Service Performance Manager and
TIBCO(R) ActiveFulfillment (and each of the foregoing, when included in any
Bundle or Embedded/ Bundled Products) are subject to a restricted license and
contain third party proprietary code that you may only use in conjunction with
the Software and may be subject to additional terms as provided by us. 26.
General. All payments of fees due shall be made in U.S. dollars, net 30 from
Purchase Date or, for any other amounts coming due hereafter, net 30 from our
invoice. Fees do not include sales, use, withholding, value-added or similar
taxes, and you agree to pay all sales, use, value-added, goods and services,
consumption, withholding, excise and any other similar taxes or government
charges, exclusive of our income tax. You agree to pay all reasonable costs
incurred (including reasonable attorneys' fees) in collecting past due amounts.
Except as set forth in the sections entitled "Limited Warranty", "Indemnity" and
"Termination" all fees paid under or in connection with this Agreement are
non-refundable and no right of set-off exists. A service charge of one and
one-half percent (1.5%) per month will be applied to all invoices that are not
paid on time. No delay in the performance of any obligation by either party,
excepting all obligations to make payment, shall constitute a breach of this
Agreement to the extent caused by Force Majeure. You hereby grant us and our
independent auditors the right to audit your compliance with this Agreement and
report any results to our licensors. You agree to provide reasonable assistance
to ensure a complete and accurate audit by us and our independent auditors. If
any portion of this Agreement is found to be void or unenforceable, the
remaining provisions shall remain in full force and effect. All notices related
to this Agreement shall be in writing. Notices will be effective if dispatched
by facsimile; or electronic mail; by hand; reliable overnight delivery service
or first-class, pre-paid mail if sent to the contract address for the intended
recipient set forth in the Order Form. A copy of any notice of default, breach
or termination shall also being sent to that party's General Counsel. 27.
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, United States of America, as if
performed wholly within the state and without giving effect to the principles of
conflict of law. The United Nations Convention on Contracts for the
International Sale of Goods and the Uniform Computer Information Transactions
Act are excluded from application hereto. Version October 2013 Copyright (C)
1994-2013 TIBCO Software Inc. ALL RIGHTS RESERVED. Addenda:
I agree to the terms of this agreement. I agree

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