IBM Rational Robot 7.0.0.1
TERMS AND CONDITIONS FOR SEPARATELY LICENSED CODE
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and not the terms of the IBM license agreement.
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Separately Licensed
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shipped with, the Program as You installed it.
The following are Separately Licensed Code:
1. Business Objects Crystal Reports
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BUSINESS OBJECTS CRYSTAL REPORTS XI FOR RATIONAL CLEARQUEST
AND TESTMANAGER PRODUCTS ("OEM Products") LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN
YOU AND BUSINESS OBJECTS FOR THE BUSINESS OBJECTS SOFTWARE
PRODUCT IDENTIFIED ABOVE AND ADD-ONS DESCRIBED HEREIN, WHICH MAY
INCLUDE COMPUTER SOFTWARE, ASSOCIATED MEDIA, PRINTED MATERIALS AND
ONLINE OR ELECTRONIC DOCUMENTATION ("SOFTWARE"). BEFORE CONTINUING
WITH THE INSTALLATION OF THE SOFTWARE, YOU MUST READ,
ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE
AGREEMENT THAT FOLLOWS ("AGREEMENT"). IF YOU DO NOT ACCEPT THE TERMS
AND CONDITIONS OF THE AGREEMENT, YOU MAY RETURN, WITHIN THIRTY
(30) DAYS OF PURCHASE, THE SOFTWARE TO THE PLACE YOU OBTAINED
IT.
1. GRANT OF LICENSE. Business Objects grants you a
nonexclusive and limited license to use the Software functionalities
solely for your internal business purposes and in accordance with
the terms and conditions of this Agreement. The Software is
licensed, not sold to you. You acquired the Software bundled or in
combination with a third party product, and you may only use the
Software with the third party product as described in section 3
below ("OEM License"). This license does not apply to any other
software program provided with the Software, including promotional
software. This Agreement does not give you any right to distribute
the Software to third parties.
"Business Objects" is the Business Objects company from
whom, or doing business with the reseller from whom, you
purchased the Software. If no Business Objects company exists in that
country, it is Business Objects Software Ltd, a company organized
under the laws of Ireland.
2. INSTALLATION AND USE.
The Software may only be installed in conjunction with the
OEM Product with which it was provided.
The Software may only be installed on a computer where the
OEM Product is also installed.
The Software may only be used while concurrently employing
a valid OEM product license provided for the OEM Product with
which it was provided.
The Software may be copied and installed as is reasonably
necessary for disaster recovery, emergency restart, and backup
purposes.
Business Objects may control the number and type of
licenses and the use of the Software by key codes.
3. LICENSE TYPE.
OEM License. The Software may only be used in conjunction
with the OEM Product with which it was provided and may only be
used to process, distribute, and display reports that only
accesses data from data files, artifacts or databases (1)
distributed with, created by, or used by the OEM Product, and (2) are
part of the software development environment.
OEM Licenses may not be combined with unrestricted licenses
in the same Business Objects deployment.
4. OWNERSHIP. Business Objects and/or its suppliers retain
all right, title and interest in and to the Software and all
copies at all times, regardless of the form or media in or on
which the original or other copies may subsequently exist. You
neither own nor hereby acquire any claim or right of ownership to
the Software or to any related patents, copyrights, trademarks
or other intellectual property. You agree to use reasonable
efforts to retain the Software, the terms of this Agreement as well
as any Software benchmark or similar tests (whether performed
by you, Business Objects or any third party) in confidence and
prevent them from unauthorized disclosure or use except with
Business Objects' prior written consent. Business Objects and/or its
suppliers reserve all rights not expressly granted to you. Business
Objects' suppliers are the intended third party beneficiaries of
this License Agreement and have the express right to rely upon
and directly enforce the terms set forth herein.
5. COPYRIGHT. The Software is copyrighted by Business
Objects and/or its suppliers and is protected by United States
copyright and patent laws and international treaty provisions. You
may not copy the Software except: (a) to provide a backup copy;
or (b) to install the Software components licensed by you, as
set forth in Sections 2 and 3, on to computers as part of
executing the Software. Solely with respect to the documentation
included with the Software, you may make a reasonable number of
copies (either in hardcopy or electronic form), provided that such
copies shall be used only by licensed end users in conjunction
with their use of the Software and are not republished or
distributed to any third party. You must reproduce and include all
copyright notices, trademarks or other proprietary legends of
Business Objects and its suppliers on any copy of the Software or
documentation made by you. Any and all other copies of the Software made
by you are in violation of this License Agreement.
6. RESTRICTIONS. Except as expressly permitted by this
License Agreement you may not: (a) lease, loan, resell, assign,
sublicense, or otherwise distribute the Software or any of the rights
granted by this License Agreement without the express written
permission of Business Objects; (b) use the Software to provide or
operate Application Service Provider (ASP), service bureau,
marketing, training, outsourcing services, or consulting services, or
any other commercial service related to the Software or to
develop training materials; (c) modify (even for purposes of error
correction), adapt, or translate the Software or create derivative works
therefrom except as necessary to configure the Software using the
menus, options and tools provided for such purposes and contained
in the Software; (d) in any way reverse engineer, disassemble
or decompile the Software (including reverse compiling to
ensure interoperability) or any portion thereof except to the
extent and for the express purposes authorized by applicable law
notwithstanding this limitation; ; (e) use the Software to develop a
product which is competitive with any Business Objects product
offerings; (f) use the Software to develop a product that converts the
report file (.RPT) format to an alternative report file format
used by any general-purpose report writing, data analysis or
report delivery product that is not the property of Business
Objects; (g) alter, disassemble, decompile, translate, adapt, or
reverse-engineer the report file (.RPT) format; (h) use
unauthorized keycodes; (i) disclose any Software benchmark results to
any third party without Business Objects' prior written
approval, (j) permit third party access to, or use of the Software
except as expressly permitted herein, and (k) distribute or
publish keycode(s). If you wish to exercise any right to reverse
engineer to ensure interoperability in accordance with applicable
law, you shall first provide written notice to Business Objects
and permit Business Objects, at its discretion, to make an
offer to provide information and assistance reasonably required
to ensure Software interoperability with your other products
for a fee to be mutually agreed upon (if any).
7. LIMITED WARRANTY AND REMEDY.
(a) Business Objects warrants to you that: (i) for a period
of ninety (90) days from delivery of the Software, the
Software will substantially conform to the functional description
set forth in its associated documentation; and (ii) for a
period of ninety (90) days from delivery the physical media (e.g.,
diskettes or CD-ROM) such physical media will be free from defects in
materials and workmanship. Any implied warranties on the Software and
media are limited to ninety (90) days from delivery, to the
extent such warranties cannot be disclaimed under Section 7(c)
below. The above warranties specifically exclude defects resulting
from accident, abuse, unauthorized repair, modifications, or
enhancements, or misapplication. Business Objects does not warrant that
the Software will operate uninterrupted or error free. Delivery
of additional copies of, or revisions or upgrades to, the
Software, including releases provided under a maintenance program,
shall not restart or otherwise affect the warranty period.
(b) Your exclusive remedy for breach of the above-stated
limited warranty shall be, at Business Objects' option, either: (i)
correction or replacement of the Software with product(s) which
conform to the above-stated limited warranty; or (ii) return of the
Software and OEM Product, pursuant to the terms of the OEM's license
agreement, thereby terminating this License Agreement with respect to
those copies not in compliance. Such remedy shall be provided to
you by Business Objects only if you give Business Objects
written notice of any breach of the above-stated limited warranty,
within ninety (90) days of delivery of the Software.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7,
BUSINESS OBJECTS AND ITS SUPPLIERS AND DISTRIBUTORS MAKE NO
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND,
EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN,
WITH RESPECT TO THE SOFTWARE AND ANY SERVICES FURNISHED IN
CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTIES OR CONDITIONS: (I) OF MERCHANTABILITY;
(II) OF SATISFACTORY OR MERCHANTABLE QUALITY; (III) OF FITNESS
FOR A PARTICULAR PURPOSE; (IV) OF NONINFRINGEMENT; (V) AGAINST
HIDDEN DEFECTS; OR (VI) ARISING FROM COURSE OF PERFORMANCE, COURSE
OF DEALING, OR USAGE OF TRADE. Some states/jurisdictions do
not allow the exclusion of implied warranties, so the above
exclusion may not apply to you, and you may have other legal rights
that vary from state to state or by jurisdiction. YOU
ACKNOWLEDGE THAT IN ENTERING INTO THIS AGREEMENT, YOU HAVE RELIED UPON
YOUR OWN EXPERIENCE, SKILL AND JUDGEMENT TO EVALUATE THE
SOFTWARE AND THAT YOU HAVE SATISFIED YOURSELF AS TO THE SUITABILITY
OF THE SOFTWARE TO MEET YOUR REQUIREMENTS
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, in no event will BUSINESS OBJECTS or its
officers, employees, DISTRIBUTORS (INCLUDING THE OEM), SUPPLIERS or
aFFILIATES be liable for: (I) COSTS OF SUBSTITUTE GOODS OR SERVICES;
(Ii) special, INDIRECT, incidental or consequential damages OF
ANY CHARACTER, WHETHER In an action of contract OR tort, even
if Business Objects has been advised of the possibility of
such damages; (iii) any claim against you by any third party;
and (iv) any damages, losses or injuries to you, or those
claiming through you, in excess of the feeS paid by you for the
Software DIRECTLY CAUSING THE LIABILITY. THESE LIMITATIONS WILL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. Some states/jurisdictions do not allow the
limitation or exclusion of liability for incidental or consequential
damages, so the above limitation may not apply to you. IN NO EVENT
SHALL OEM BE LIABLE TO YOU UNDER THIS AGREEMENT.
9. TERMINATION. This Agreement may be terminated by
Business Objects if: you fail to comply with any of the terms and
conditions set forth in this Agreement and do not remedy such failure
within thirty (30) days after receiving notice thereof. Upon any
termination of this Agreement, you agree to: (i) immediately cease all
use of the Software, including the use and distribution of any
Custom Applications incorporating the Software; and (ii) destroy
same, and certify to Business Objects, in writing, that all
copies and partial copies thereof have been returned or completely
destroyed and are no longer being used. Termination shall not relieve
you from your obligation to pay fees that remain unpaid and
shall not limit Business Objects from pursuing other available
remedies. Upon termination by Business Objects of this Agreement,
Business Objects will have no obligation to refund to you any fees
paid by you and you agree to waive in perpetuity and
unconditionally any and all claims for refunds. Sections 4, 5, 7(c), 8, 10,
11, 12, 13, and 14 shall survive any termination of this
License Agreement.
10. AUDIT. During the term of this Agreement and for three
(3) years after termination or expiration, Business Objects may
audit, upon reasonable notice to you and at Business Objects'
expense, your books and records to determine your compliance with
this Agreement. In the event that you have knowingly breached
any material obligation hereunder, then, in addition to such
other remedies as Business Objects may have, you shall pay or
reimburse to Business Objects the cost of the audit.
11. GENERAL. Except as otherwise preempted by United States
federal law, this Agreement is governed by the laws of the State of
California, United States, without reference to conflict of laws
provisions or the United Nations 1980 Convention on Contracts for the
International Sale of Goods and any amendments thereto. If any provision
of this Agreement is ruled invalid, such invalidity shall not
affect the validity of the remaining portions of this Agreement.
This Agreement constitutes the entire agreement between you and
Business Objects, and supersedes any prior agreement, whether
written or oral, relating to the subject matter of this Agreement.
This Agreement may not be modified except by an instrument in
writing duly signed by an authorized representative of each of the
parties. If you are acquiring the Software on behalf of an entity,
you represent and warrant that you have the legal capacity to
bind such entity to this Agreement. All terms of any purchase
order or other ordering document submitted by you shall be
superseded by this License Agreement. In the event you and Business
Objects have executed a mutually agreed upon Master Software
License Agreement ("MSLA") and acquired the Software pursuant to
such MSLA, the terms of the MSLA shall govern your use of the
Software and the terms of this Agreement shall be superseded by the
MSLA. The product name for the Software is a trademark or
registered trademark of Business Objects. Should you have questions
concerning this License Agreement, please contact your local Business
Objects sales office or authorized reseller, or write to: Business
Objects S.A., Attn: Worldwide Licensing , 3030 Orchard Parkway, San
Jose, CA 95134.
12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is a
"commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct.
1995), consisting of "commercial computer software" and
"commercial computer software documentation," as such terms are used in
48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or
an equivalent provision, e.g., in supplements of various U.S.
government agencies, as applicable), all U.S. Government users acquire
the Software with only those rights set forth herein.
Manufacturer is Business Objects S.A., 3030 Orchard Parkway, San Jose,
CA 95134.
13. EXPORT CONTROLS. You acknowledge that the Software is
of U.S. origin. You agree to comply with all applicable
international and national laws that apply to the Software, including the
U.S. Export Administration Regulations, as well as end-user,
end-use and destination restrictions issued by U.S. and other
governments.
14. COUNTRY UNIQUE TERMS. If you purchased the Software in
any territory specified below (the "Local Territory"), this
section sets forth specific provisions as well as exceptions to the
above terms and condition. To the extent any provision applicable
to the Local Territory (the "Local Provision") set forth below
is in conflict with any other term or condition in this
agreement, the Local Provision will supersede such other term or
condition with respect to any licenses purchased in the Local
Territory.
Australia:
a) Limited Warranty and Remedy (Section 8): The following
is added:
The warranties specified in this Section are in addition to
any rights You may have under the Trade Practices Act 1974 or
other legislation and are only limited to the extent permitted by
the applicable legislation.
b) Limitation of Liability (Section 9): The following is
added:
To the extent permitted by law, where Business Objects is
in breach of a condition or warranty implied by the Trade
Practices Act 1974 or the equivalent State or Territory legislation
which cannot be excluded, Business Objects' liability is limited,
at Business Objects' sole election: (i) in case of the
Software: (a) (i) to repair or replace the goods, or the supply of
equivalent goods, or (ii) payment of the cost of such repair or
replacement or of acquiring equivalent goods; and (ii) in case of
Support Services: (x) re-supply of the Support Services; or (y) the
cost of having the services supplied again. In calculating
Business Objects' aggregate liability under this Agreement, the
amounts paid or the value of any goods or services replaced,
repaired, or supplied by Business Objects pursuant to this paragraph
shall be included.
c) Governing Law (Section 17): The following replaces the
terms of this section in its entirety:
This Agreement is governed by the laws of the State or
Territory in which you acquired the Software, without reference to
conflict of laws provisions or the United Nations 1980 Convention on
Contracts for the International Sale of Goods and any amendments
thereto.
Belgium and France
a) Limitation of Liability (Section 9): The following
replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. Business Objects' liability for any damages and losses
that may arise as a result of the performance of its obligations
in connection with this Agreement is limited to the
compensation of only those damages and losses proved and actually
arising as an immediate and direct consequence of the non-
fulfillment of such obligations (if Business Objects is at fault), for
a maximum amount equal to the charges You paid for the
Software that has caused the damages. This limitation shall not
apply to damages for bodily injuries (including death) and
damages to real property and tangible personal property for which
Business Objects is legally liable.
2. UNDER NO CIRCUMSTANCES IS BUSINESS OBJECTS, OR ANY OF
ITS SOFTWARE DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN
IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO,
DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN
IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4)
LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed
applies not only to the activities performed by Business Objects
but also to the activities performed by its suppliers and
Software developers, and represents the maximum amount for which
Business Objects as well as its suppliers and Software developers,
are collectively responsible. This limitation shall not apply
to damages for bodily injuries (including death) and damages
to real property and tangible personal property for which
Business Objects is legally liable.
b) Governing Law (Section 17): The following replaces the
terms of this section in its entirety:
This Agreement is governed by the laws of country in which
you acquired the Software, without reference to conflict of
laws provisions or the United Nations 1980 Convention on
Contracts for the International Sale of Goods and any amendments
thereto.
Germany and Austria
a) Warranty (Section 8): The following replaces the terms
of this section in its entirety:
Business Objects warrants that the Software provides the
functionalities set forth in the associated documentation ("Documented
Functionalities") for the Limited Warranty Period following receipt of the
Software when used on the recommended hardware configuration.
Limited Warranty Period means one year if you are a business user
and two years if you are not a business user. Non-substantial
variation from the Documented Functionalities does not establish any
warranty rights. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE
PROVIDED TO YOU FREE OF CHARGE (FOR EXAMPLE, UPDATES, PRE-RELEASE,
EVALUATION, OR NFR) OR SOFTWARE THAT HAS BEEN ALTERED BY YOU, TO THE
EXTENT SUCH ALTERATION CAUSED A DEFECT. To make a warranty claim,
you must return, at Business Objects expense, the Software and
proof of purchase to the company from whom you obtained it. If
the functionalities of the Software vary substantially from the
agreed upon functionalities, Business Objects is entitled, by way
of re-performance and at is own discretion, to repair or
replace the Software. If that fails, you are entitled to a
reduction of the purchase price or to cancel the purchase agreement.
b) Limitation of Liability (Section 9): the following
paragraph is added to this Section:
The limitations and exclusions specified in this Section
will not apply to damages caused by Business Objects'
intentional or by gross negligence. In addition, Business Objects shall
be responsible up to the amount of the typically foreseeable
damages from any damage which has been caused by Business Objects
or its agents due to the slightly negligent breach of a
material contractual duty. This limitation of liability shall apply
to all damage claims, irrespective of the legal basis there of
and in particular, to any pre-contractual or auxiliary
contractual claims. This limitation of liability shall not, however,
apply to any mandatory statutory liability under the product
liability act nor to any damage which is caused due to the breach of
an express warranty to the extent the express warranty was
intended to protect you from the specific damage incurred.
c) Governing Law (Section 17): The following replaces the
terms of this section in its entirety:
This Agreement is governed by the laws of country in which
you acquired the Software, without reference to conflict of
laws provisions or the United Nations 1980 Convention on
Contracts for the International Sale of Goods and any amendments
thereto.
italy
a) Limited Warranty and Remedy (Section 8): The following
replaces the terms of this section in its entirety
b) Limitation of Liability (Section 9): the following
replaces the terms of this section in its entirety:
Apart from damages arising out of gross negligence or
willful misconduct for which Business Objects may not limit its
liability, Business Objects' liability for direct and indirect damages
related to the original or further defects of the Software, or
related to the use or the nonuse of the Software or related to any
case whatsoever for breach of the Agreement, shall be limited to
the fees paid by you to Business Objects for the Software or
for the part of the Software upon which the damages were based.
c) Governing Law (Section 17): The following replaces the
terms of this section in its entirety:
This Agreement is governed by the laws of country in which
you acquired the Software, without reference to conflict of
laws provisions or the United Nations 1980 Convention on
Contracts for the International Sale of Goods and any amendments
thereto.
United Kingdom
c) Governing Law (Section 17): The following replaces the
terms of this section in its entirety:
This Agreement is governed by the laws of England and
Wales, without reference to conflict of laws provisions or the
United Nations 1980 Convention on Contracts for the International
Sale of Goods and any amendments thereto. Notwithstanding any
other provision in this Agreement, nothing in this Agreement
shall create or confer (whether expressly or by implication) any
rights or other benefits whether pursuant to the Contracts Rights
of Third Parties) Act 1999 or otherwise in favour of any
person not a party hereto.
END OF BUSINESS OBJECTS CRYSTAL REPORTS
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