VMS SOFTWARE, INC.
COMMUNITY LICENSE AGREEMENT
PLEASE READ CAREFULLY: THE USE OF THE SOFTWARE PROVIDED TO YOU BY VMS SOFTWARE, INC. (“VSI”) IS SUBJECT TO THE TERMS AND CONDITIONS THAT FOLLOW (“AGREEMENT”). BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, OR BY CHOOSING THE “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, YOU AGREE TO THE TERMS OF THIS AGREEMENT, ANY APPLICABLE WARRANTY STATEMENT AND THE TERMS AND CONDITIONS CONTAINED IN THE ANCILLARY SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE 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 THE SOFTWARE, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
- Non-commercial means not used for commercial advantage, direct monetary compensation or indirect monetary compensation.
- Software means machine-readable instructions and data (and copies thereof) including middleware and related updates and upgrades that You may be separately authorized to receive, as well as licensed materials, user documentation, user manuals, and operating procedures. “Ancillary Software” means all or any portion of Software provided under public, open source, or third party license terms.
- Specification means technical information about Software products published in VSI product manuals, user documentation, and technical data sheets in effect on the date VSI delivers Software products to You (as defined below).
- VSI means VMS Software, Inc. or one of its subsidiaries.
- VSI Branded means Software products bearing a trademark or service mark of VMS Software, Inc. or any VSI Affiliate, and embedded VSI selected third party Software that is not offered under a third party license agreement.
- You and Your refer either to an individual person or to a single legal entity, as licensee of the Software under the terms of this Agreement.
2. LICENSE TERMS AND RESTRICTIONS
- Subject to the terms and conditions of this Agreement and the payment of any applicable license fee, VSI grants You a non-exclusive, non-transferable revocable license to Use (as defined below) the Software in object code form as provided to you by VSI, solely for Non-commercial purposes. You may Use Software only as provided for, and in connection with either Alpha, Integrity, or x86-64 processor-based servers, and/or emulators and/or hypervisors, as agreed by You and VSI. “Use” means to install, store, load, execute and/or display results or output of the Software in accordance with the Specifications. Some Software may require license keys or contain other technical protection measures. You acknowledge that VSI may monitor your compliance with Use restrictions remotely or otherwise, and you agree to provide reasonable cooperation in connection therewith.
- This Agreement confers no title or ownership and is not a sale of any rights in the Software. Third-party suppliers are intended beneficiaries under this Agreement and independently may protect their rights in the Software in the event of any infringement. All rights not expressly granted to You are reserved solely to VSI or its suppliers. Nothing herein should be construed as granting You, by implication, estoppel or otherwise, a license relating to Software other than as expressly stated above in this Section 2.
- Unless otherwise permitted by VSI, You (a) may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized use of the Software on a backup device, provided that copies and adaptations are used in no other manner and provided further that Use of Software on the backup device is discontinued when the original or replacement device becomes operable, and (b) may not copy the Software onto or otherwise use or make it available on, to, or through any public or external distributed network.
- No Software support or updates, upgrades or enhancements are provided hereunder. Updates, upgrades, enhancements, or other support are only available under separate VSI support agreements. You may contact VSI to learn more about any support offerings VSI may make available. VSI reserves the right to require additional licenses and fees for Software upgrades or other enhancements, or for Use of the Software on upgraded devices.
- You will not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Software. Where You have other rights mandated under statute, You will provide VSI with reasonably detailed information regarding any intended modifications, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore.
- Extending the use of Software to any person or entity other than You as a function of providing services, (i.e.; making the Software available through a commercial timesharing or service bureau) must be authorized in writing by VSI prior to such use and may require additional licenses and fees. You may not publish distribute, resell, or sublicense the Software.
- Notwithstanding anything in this Agreement to the contrary, all or any portion of the Software which constitutes Ancillary Software is licensed to You subject to the terms and conditions of the software license agreement accompanying such Ancillary Software, whether in the form of a separate agreement, shrink wrap license or electronic license terms accepted at time of download. Use of the Ancillary Software by You shall be governed entirely by the terms and conditions of such license and, with respect to VSI, by the limitations and disclaimers of Sections 3 and 5 hereof. VSI has identified any Ancillary Software by either noting the Ancillary Software provider's ownership within each Ancillary Software program file and/or by providing information in the "ancillary.txt” or “readme” file that is provided as part of the installation of the Software. The Ancillary Software licenses are also set forth in the "ancillary.txt" or “readme” file. If the Software includes Ancillary Software licensed under the GNU General Public License and/or under the GNU Lesser General Pubic License ("GPL Software"), a complete machine-readable copy of the GPL Software Source Code ("GPL Source Code") is either: (i) included with the Software that is delivered to You; or (ii) upon your written request, VSI will provide to You, a complete machine-readable copy of the GPL Source Code, or (iii) if You obtained the Software by downloading it from a VSI website and neither of the preceding options are available, you may download the GPL Source Code from the same website. Information about how to make a written request for GPL Source Code may be found in the ancillary.txt file or, if an address is not listed in that file, at the following website: www.vmssoftware.com.
3. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VSI AND ITS SUPPLIERS PROVIDE THE SOFTWARE “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL INDEMNITIES, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES. VSI DOES NOT WARRANT THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU IN ITS ENTIRETY.
In partial consideration of the license granted hereunder, you agree to provide reasonable participation in the online Software community forums, including without limitation such activities as answering questions and contributing articles and how-to videos to the Open VMS online Software community at https://forum.vmssoftware.com.
5. FONT PROGRAMS
- The Software contains font software programs that generate human readable typeface designs (“Font Programs”). You may not install or use the Font Programs on any device except one on which you have installed a properly licensed copy of the Software.
- The Font Programs are supplied solely to You for Non-commercial use only.
- You may not convert the Font Programs into a different format. You may not alter or modify the Font Programs in any manner that results in the Font Programs having different or enhanced functionality then when it was delivered to you as part of the Software.
- You may use an application program to embed the output of the Font Programs into an electronic document. You may send such an electronic document to a third party only for the purpose of permitting the third party to view and print the electronic document. Font Programs may not be embedded in any format that permits the recipient of an electronic document to install the Font Programs or to use the Font Programs for any purpose beyond merely viewing and printing the document. You may not embed Font Programs into a Commercial Product. A “Commercial Product” is an electronic document that is distributed in exchange for a fee or other consideration. For example, you cannot embed Font Programs into an electronic book or magazine that is offered to the public for a fee.
- Except for the print and view embedding permission granted in Section 5(d) above, you may not copy the Font Programs, provided, however, you may make one copy of the Font Programs for archival purposes only. The archival copy cannot be distributed and can be used only when you have permanently deleted the original or any copy of the Font Programs on your device. You may not reverse engineer, decompile, or take any action which results in or designed to result in gaining access to the source code of the Font Programs, except as permitted by law and then only for the purpose of achieving an interoperable program
- The Font Programs supplied with the Software is proprietary and is protected by U.S. and international copyright and trademark law. All rights not expressly set forth herein are reserved. A breach of this End User License Agreement may subject you to damages and injunctive relief under this Agreement as well as under applicable copyright and trademark law.
- If you are acquiring Font Programs on behalf of any unit or agency of the United States Government, the following provisions shall apply. Use, duplication or disclosure by the United States Government is subject to restrictions as set forth in the Rights in Technical Data and computer Software clause at FAR 252.227-7013, subdivision (b)(3)(ii) or subparagraph (c)(1(ii), as appropriate. Further use, duplication or disclosure is subject to restrictions to restricted rights software as set forth in FAR 52.227-19(c)(2).
6. LIMITATION OF LIABILITY AND REMEDIES
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR, AND EXCEPT FOR DAMAGES FOR BODILY INJURY (INCLUDING DEATH), THE ENTIRE AGGREGATE LIABILITY OF VSI AND ANY OF ITS SUPPLIERS RELATING TO THE SOFTWARE OR THIS AGREEMENT, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU SEPARATELY FOR THE SOFTWARE OR U.S. $5.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VSI OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, DOWNTIME COSTS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS, DISCLOSURE, UNAVAILABILITY OF OR DAMAGE TO DATA, SOFTWARE RESTORATION, OR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF VSI OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
This Agreement is effective for twelve (12) months from installation of the Software. Notwithstanding the foregoing, this Agreement will also terminate upon conditions set forth elsewhere in this Agreement or if You fail to comply with any term or condition hereof. Upon termination You will destroy the Software and all copies of the Software or return them to VSI. You may retain one copy of the Software subsequent to termination solely for archival purposes only. Sections 3, 5, 6 and 7 will survive termination of this Agreement.
- You may not assign, sublicense, delegate or otherwise transfer (“Assign”) all or any part of this Agreement without prior written consent from VSI, payment to VSI of any applicable fees, and compliance with VSI’s Software license transfer policies and any applicable third party license terms. Any such attempted Assignment will be null and void. Where an authorized Assignment occurs in accordance with this Section, Your rights under this Agreement will terminate, and You will immediately deliver the Software and all copies to the Assignee. The Assignee must agree in writing to the terms of this Agreement, and the transferee thereafter will be considered “You” for purposes of this Agreement. You may transfer firmware only upon transfer of the associated hardware.
- If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, You agree that, consistent with FAR 12.211 and 12.212, commercial computer Software, computer Software documentation and technical data for commercial items are licensed under VSI’s standard commercial license.
- To the extent You export, re-export, or import Software, technology, or technical data licensed or provided hereunder, You assume sole responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. VSI may suspend performance if You are in violation of any applicable laws or regulations.
- This Agreement is governed by the laws of the State of Delaware, U.S.A., excluding rules as to choice and conflict of law. You and VSI agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Subject to the other terms and conditions of this Agreement, this Agreement is the entire agreement between VSI and You regarding Your Use of the Software, and supersedes and replaces any previous communications, representations, or agreements, or Your additional or inconsistent terms, whether oral or written. In the event any provision of this Agreement is held invalid or unenforceable VSI’s failure to exercise or delay in exercising any of its rights under this Agreement will not constitute or be deemed a waiver or forfeiture of those rights.