THIS IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT IS LICENSING OR HAS LICENSED THE SMARTCLIENT/SMART GWT SOFTWARE ("YOU") AND ISOMORPHIC SOFTWARE, INC. ("ISOMORPHIC"). BY DOWNLOADING OR USING THE SOFTWARE ACCOMPANYING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD OR USE THE SOFTWARE.
SINGLE DEVELOPER / SINGLE ORGANIZATION LICENSE: The Software is licensed herein for development use by a single individual, to create software products on behalf of a single organization. This is a "named user" license - all developers who use the Product SDK in the development of Integrated Products must be individually licensed.
1. DEFINITIONS
(a) "Deploy" or "Deployment" means installation of software programs onto computer server systems that may be accessed by individual end users over a computer network.
(b) "Documentation" means the generally available user manuals and reference guides that describe the capabilities and use of the Software.
(c) "Licensed Developer(s)" means all individuals, specified by 'First Name' and 'Last Name' in the registration process prior to downloading the Software, who have accepted this Agreement. A Licensed Developer may be an independent consultant or contractor to the Licensed Organization.
(d) "Licensed Organization" means the company, organization, or other legal entity that you specify as 'Company/Organization' in the registration process prior to downloading the Software. If you do not specify a valid legal entity as the 'Company/Organization', you are the Licensed Organization.
(e) "Software" means the current version of the Smart GWT™ and SmartClient™ Pro; software and documentation supplied by Isomorphic under this Agreement, and any updates to this software and documentation that you are entitled to receive under this Agreement. The Software includes all components which are made separately available under the SmartClient and Smart GWT LGPL licenses, except governed by this license instead. The Software also includes the SmartClient/Smart GWT server framework, but does not include any components that are explicitly limited to SmartClient/Smart GWT Power or Enterprise Editions, or optional components that may be included in evaluation versions of the SmartClient/Smart GWT product and labeled as 'Optional' in the Documentation.
(f) "Integrated Product" means software application(s) or product(s) built by the Licensed Developer(s) which incorporate the Product Runtime.
(g) "Licensee Customer" means a third-party who licenses Integrated Product from the Licensed Organization, solely for ordinary business use and not for further distribution or resale.
(h) "Product SDK" or "SDK" means the complete set of tools and documentation intended for use in developing SmartClient & Smart GWT applications. For SmartClient, this means the software, documentation, examples, tools, and other components provided in the 'smartclientSDK' directory of the Licensed Software. For Smart GWT, this means the resources that are included in the "Tools" GWT module(s) and any provided samples or documentation. These resources are considered part of the SDK regardless of how such resources are deployed or accessed, and inclusive of online versions made available by Isomorphic. The SDK is intended for use in development and testing environments only.
(i) "Product Runtime" or "Runtime" means the set of resources intended for deployment with the Integrated Product. For SmartClient, this means the components provided in the 'smartclientRuntime' directory of the Licensed Software. For Smart GWT, this means the resources that are included in the com.smartgwtee.SmartGwtEE module as well as GWT modules included with the Software representing alternative skins. The Runtime does not include the documentation, examples, or tools that are provided in the SDK nor any components or modules that are labeled as 'Development Only', 'Experimental', or 'Optional'.
2. LICENSE GRANTS
Subject to all of the terms in this Agreement, Isomorphic grants to you the following non-exclusive licenses:
(a) Development License. You may download, copy, and use the Product SDK and Product Runtime on a reasonable number of development and testing systems that are accessed and used by Licensed Developer(s) only, solely for purposes of developing, testing, and maintaining Integrated Product(s).
(b) Distribution License. You may distribute the Product Runtime, solely as integrated into Integrated Product(s), to an unlimited number of Licensee Customers and within the Licensed Organization itself, provided that the Integrated Product is licensed by means of written license agreements which contain terms no less restrictive than those listed in Section 3.8.
(c) Deployment License. You may copy and Deploy the Product Runtime, solely as integrated in the Integrated Product(s), to an unlimited number of server systems operated by the Licensed Organization, solely for the use of Licensee Organization and Licensee Customers, provided that access to such systems by Licensee Customers is granted by a written agreement which contains the terms no less restrictive than those listed in Section 3.8.
3. LICENSEE OBLIGATIONS
You acknowledge and agree that the Software contains valuable trade secrets and other proprietary and confidential information and materials of Isomorphic, and accordingly you agree: 3.1 not to make or distribute copies of the Software except as provided in Section 2; 3.2 to integrate and Deploy the Software only as a part of the Integrated Product; 3.3 to preserve all proprietary notices and marks in the Software; 3.4 not to modify the Software or create any derivative work from the Software; 3.5 not to reverse engineer, decompile, unobfuscate, reformat, or otherwise attempt to read or make readable any portion of the code (or the underlying ideas, algorithms, structure or organization) of the Software, except and only to the extent and on the conditions that this obligation is not enforceable under applicable law; 3.6 not to rent, lease, sell, sublicense, grant a security interest in, or otherwise transfer any rights in the Software; 3.7 not to export or use the Software in any manner that violates any applicable international, federal, state, or local law or regulation; and 3.8 to license or provide access to the Integrated Product to Licensee Customers only by means of written agreements which expressly prohibit Licensee Customers from: (i) modifying or extending the Product Runtime or creating any derivative work of the Product Runtime; (ii) removing or altering any marks or proprietary notices or labels contained in the Product Runtime; (iii) reverse compiling, reverse engineering, disassembling, unobfuscating, reformatting, or otherwise attempting to read or make readable any portion of the code (or the underlying ideas, algorithms, structure or organization) of the Product Runtime; (iv) accessing or using the APIs of the Product Runtime; or (v) renting, leasing, selling, sublicensing, granting a security interest in, or otherwise transferring any rights in the Product Runtime 3.9 not to use the Software to create or develop, or intentionally enable any third party to create or develop, a software product that directly competes with the Software In the event that you fail to comply with any provision of this Agreement, Isomorphic may terminate the licenses granted herein and you must immediately destroy all copies of the Software made under this Agreement (with all other provisions of this Agreement surviving any such termination).
5. UPDATES
(a) Minor versions. For as long as the last major version of the Licensed Software made available to you is generally supported by Isomorphic, Isomorphic will provide you with access to the most recent generally available minor version of the Licensed Software (as indicated by a change to the number immediately following the first decimal point in the Software version number).
(b) Maintenance updates and patches. For as long as the last minor version of the Licensed Software made available to you is generally supported by Isomorphic, Isomorphic will provide you with access to all generally available maintenance updates (as indicated by a change to the number immediately following the second decimal point in the Software version number) and patches to that minor version of the Software. (c) Major versions. The Licensee is not entitled to new major versions of the Licensed Software (as indicated by the number prior to the decimal point in the Software version number).
6. SERVICES & SUPPORT
You may purchase support, training, consulting, or other services offered by Isomorphic separately at your discretion. Isomorphic is not obligated under this Agreement to provide any technical support, training, or other services to you or to Licensed Organization with respect to the Software or Integrated Product.
7. OWNERSHIP
This Agreement gives you a limited license only to copy and use the Software. No additional rights or licenses are granted by implication, estoppel, or otherwise. Isomorphic and its suppliers retain all title, interest, and rights, including all copyrights, patent rights, trade secret rights, trademarks and other proprietary rights, in and to the Licensed Software, all copies thereof, and all enhancements, modifications, and derivative works thereto.
8. PAYMENT
The licenses granted herein are contingent upon your payment of license fees charged during the purchasing process. If your payment of license fees is canceled or denied, these licenses will terminate and you must immediately delete all copies of the Software. You are responsible for payment of any sales, value added, excise, or other taxes or duties that may be imposed upon or with respect to delivery, deployment, or use of the Software. You agree that Isomorphic or its designated auditor may, upon reasonable notice, audit your use of the Software for compliance with this Agreement.
9. CUSTOMER PROMOTION
Isomorphic may state publicly that Licensed Organization has licensed the Software for Integrated Product(s), and may use Licensed Organization's name and logo in Isomorphic's public customer lists.
10. LIMITED WARRANTY
(a) Isomorphic warrants to you that, for a period of ninety (90) days from your initial download of the Software (i.e. not including subsequent updates), the Software will perform in substantial conformance with the Documentation. Your exclusive remedy under this warranty is to contact Isomorphic in writing within the warranty period, including your product serial number and a description of the problem. Provided that you report any non-compliance with this warranty in writing to Isomorphic within the warranty period, Isomorphic will use reasonable commercial efforts to, at its option: (i) supply to you a replacement copy of the Licensed Software that substantially conforms to the Documentation; or (ii) advise you how to achieve substantially the same functionality through a procedure different from that set forth in the Documentation; or (iii) terminate this Agreement and refund to you the license fees paid for the Software.
(b) THE FOREGOING WARRANTY AND REMEDY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ISOMORPHIC DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. ISOMORPHIC SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS.
11. LIMITATION OF LIABILITY
ISOMORPHIC SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF USE OR BUSINESS, LOSS OR CORRUPTION OF DATA, LOSS OF BUSINESS OR PROFITS, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ISOMORPHIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ISOMORPHIC'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF US$500 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
12. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and Documentation are commercial items developed exclusively at private expense, and in all respects are proprietary data belonging solely to Isomorphic. If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and Documentation acquired under this Agreement is subject to the restrictions of this Agreement. If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software and Documentation acquired under this Agreement is subject to the restrictions of this Agreement. Unpublished rights reserved under the copyright laws of the United States. Isomorphic Software Inc., 101 California Street, Suite 2450, San Francisco, CA 94105, USA.
13. THIRD-PARTY COMPONENTS (Java integration server only)
The Java integration server components of the Software may bundle certain third-party components provided under terms and conditions which are different from those of this Agreement. These third-party components and their license terms and conditions may be found in the WEB-INF/lib/ and WEB-INF/licenses/ directories of the Product SDK and Product Runtime for SmartClient, and in the WEB-INF/licenses directories of each sample in Smart GWT. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein. Such additional terms and conditions, and not the terms of this Agreement (other than Sections 10(b) and 11), apply to such third-party components.
14. EXPORT REQUIREMENTS
The export and re-export of Isomorphic Software products are controlled by the United States Export Administration Regulations and such software may not be exported or re-exported to Cuba, Iran, North Korea, Sudan, Syria, or any country to which the United States embargoes goods. In addition, Isomorphic software may not be distributed to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
By downloading or using an Isomorphic software product you are certifying that you are not a national of Cuba, Iran, North Korea, Sudan, Syria, or any country to which the United States embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
15. GENERAL
(a) This Agreement is the entire agreement between you and Isomorphic with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and representations, whether written or oral. No purchase order or similar document issued by you shall modify or amend this Agreement. No agent or employee of Isomorphic is authorized to make any amendment to this Agreement unless such amendment is in writing and signed by a duly authorized representative of Isomorphic. (b) This Agreement shall be governed by the substantive and procedural laws of the State of California, U.S.A., excluding its conflict of law provisions that would require the application of the laws of any other state. Any dispute regarding this Agreement will be heard in the state or federal courts having jurisdiction in San Francisco County, California, U.S.A. and both parties hereby consent to the jurisdiction and venue of such courts. The prevailing party in any action to enforce the provisions of this Agreement shall be entitled to recover all reasonable attorneys' fees and expenses incurred in connection therewith. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is expressly disclaimed. Notwithstanding the foregoing, Isomorphic may seek immediate relief in any court of competent jurisdiction to protect or enforce its intellectual property rights and its confidential information. (c) You may not assign, transfer or delegate this Agreement, in whole or in part, by operation of law or otherwise, without Isomorphic's written consent. (d) You agree to indemnify, hold harmless and defend Isomorphic from and against any loss, cost, liability, expense, damage, claims, or lawsuits that arise from the deployment or use of the Integrated Product. (e) You acknowledge that a breach of this Agreement may cause Isomorphic irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Isomorphic may seek the entry of an injunction enjoining any breach or threatened breach hereof, in addition to any other relief to which Isomorphic may be entitled at law or in equity. (f) If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Agreement will remain in full force and effect. (g) The failure, delay, or waiver by Isomorphic to act on any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. (h) All questions and notices from you concerning this Agreement shall be directed to: Isomorphic Software Inc., 101 California Street, Suite 2450, San Francisco, CA 94111, USA, Attention: Legal.