Licence agreement

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END USER LICENCE AGREEMENT


For BLU AGE SOFTWARE


Abstract: LICENSE TERMS FOR BLU AGE SOFTWARE


  • BLU AGE FORWARD ENGINEERING
  • BLU AGE FORWARD ENGINEERING DELIVER
  • BLU AGE REVERSE MODELING
  • BLU AGE DATA & DATABASE MODERNIZATION
  • BLU AGE M2
  • BLU AGE II FORWARD ENGINEERING
  • BLU AGE II FORWARD ENGINEERING DELIVER
  • BLU AGE II M2
  • BLU AGE II LEGACY CLIENT SERVER to CLOUD
  • BLU AGE II LEGACY PROCEDURAL to CLOUD
  • BLU AGE II DATA & DATABASE MODERNIZATION
  • BLU AGE II FACTORY
  • BLU AGE II LICENSE SERVER
IMPORTANT READ CAREFULLY BEFORE INSTALLING OR DOWNLOADING OR USING THE PRODUCT


THIS BLU AGE SOFTWARE PRODUCT AS DEFINED BELOW (THE “PRODUCT”) IS MADE AVAILABLE TO YOU, SUBJECT TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“LICENCE”). PLEASE READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR DOWNLOADING OR USING THE PRODUCT. A COPY OF THIS LICENSE IS AVAILABLE FOR YOUR FUTURE REFERENCE IN THE "LICENSE.PDF" FILE PROVIDED WITH THE PRODUCT.


BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS LICENSE THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS LICENCE (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU ARE ENTERING INTO THIS LICENSE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL RIGHT AND AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS LICENSE AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS LICENSE SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH LEGAL RIGHT AND AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS LICENSE, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT DOWNLOAD, INSTALL OR USE THE PRODUCT.


Blu Age Company, as defined under Article 1, below is only willing to grant You this License if You obtained the Product from Blu Age Company or a Distributor. If You obtained the Product from any other source You may not install or download or use the Product.


  1. DEFINITIONS

Unless otherwise defined, capitalised terms, singular or plural, used in this Agreement shall have the meaning set out below.


"Agreement" means this End User Licence Agreement and all its Annexes hereto, as amended, supplemented or substituted from time to time as and when applicable in accordance with the terms of this Agreement.


"Agreed Type of Licence" means the type of licence granted to You by Blu Age Company or its Distributor(s) as defined under Annex B of this Agreement.


"BLU AGE COMPANY" means NETFECTIVE TECHNOLOGY S.A and its affiliates or subsidiaries as defined under Article L. 233-3 I of the French Commercial Code.


"Copy" means the result of the duplication or reproduction of the Software on the same support or on a new support.


"Distributor": means any reseller, distributor or dealer authorized by BLU AGE COMPANY to distribute the Software.


"Documentation" means the description of the technical specifications, technical documentation, including but not limited to, the description of the architecture of the Software, the functions executable by the Software and its expected results, programming tools, compilation/de-compilation tools and procedures, as well as, the user guide associated with the Software to enable the installation, parameterization and use of the Software.


"Enhancements" means Software changes that add program features or functions not originally within the Software and that are generally provided upon payment of additional license fees.  BLU AGE COMPANY reserves the right to define which changes are Upgrades or separately priced Enhancements.


"Fee(s)" means the fee applicable to the Licensed Software.


"Hardware" means any and all machines, either on premises or in a private or public Cloud, hosting the Software and more generally any computer, computing environment, including a Server, which benefits from the Licensed Product. The licensed Product does not have to be physically installed on the computer environment to provide benefit, nor is there a requirement for the computing hardware to be owned by You. The term Hardware as defined herein includes, without limitation, non-persistent deployments, electronic devices that are capable of retrieving data, and virtual machines.


"Intellectual Property Rights" means any intellectual and industrial property rights including but not limited to all rights in patents, utility models, semi-conductor topography rights, copyrights, authors’ rights, trade marks, brands, domain names, trade secrets, know-how and other rights in information, drawings, logos, plans, database rights, technical notes, prototypes, processes, methods, algorithms, any technical-related documentation, any software, registered designs and other designs, in each case, whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world.


"Licence Certificate" means the authorization given to You by BLU AGE COMPANY or its Distributor(s) for each license that You acquire to use the Product. A License Certificate may be a certificate or the installation and licensing instructions, Your invoice, Your Ordering Document, an activation file and which may be provided to You either with the Product media or separately by BLU AGE COMPANY or its Distributors. The License Certificate will eventually contain information specific to the Product licensed, the edition of the Product that You have licensed (eg: BLUAGE FORWARD ENGINEERING) the type of license under which You may Use the Product as defined herein, the duration and the number of licenses that You have acquired.


“Ordering Document” means either: (i) Your request for Using the Product, where such request is made via a web site or (ii) any other written order (either in electronic or paper form) that BLU AGE COMPANY or its Distributor(s) provide You that describes the License You are purchasing and that is signed by You (on behalf of Your company or other legal entity), either manually or electronically. Such Ordering Document could include other services, third party documents, and any other document referenced or incorporated into the Ordering Document).


"Modifications" means interfaces or changes to the Software made by Blu Age Company at Your request.


"Parties" means You and BLU AGE COMPANY. The term Party shall be construed accordingly.


"Product" means the Software and its Documentation as defined under article 1 herein.


"Software" means any program or data file supplied to You by Blu Age Company or its Distributor(s), and owned by BLU AGE COMPANY, including all associated Upgrades, Modifications and Enhancements.


"Third Party Licensors" has the definition set out under article 8 of this Agreement.


"Third Party Provider of Cloud Services" has the definition set out under article 8 of this Agreement.


"Third Party Software" has the definition set out under article 8 of this Agreement.


"Upgrades" means changes made to maintain compatibility with new system software releases or to improve upon previous existing features and operations with the Software. This primarily includes program fixes to existing Software.


"Use" means either (i) copying or loading any portion of Software from storage units or media into any equipment for the processing of data by Software once so loaded, or the operation of any procedure or machine instruction utilizing any portion of either the computer program or instructional material supplied with the Software or (ii) accessing Software functionalities made available to You on virtual machines through private or public cloud. Use is deemed to occur at the location where any of the above processes happen. Use is limited to the type of operations described in the Documentation solely to process Your own work.


You” and “Your” refers to the individual or legal entity that has purchased the Product, which is the subject of this Agreement, from BLU AGE COMPANY or its Distributor(s).


  1. STRUCTURE OF THE AGREEMENT

2.1. Entire Agreement


2.1.1.This Agreement, together with its Annexes, supersedes all previous understandings between the Parties, whether oral or written, with respect to the purpose of this Agreement.


2.1.2. This Agreement and any other document incorporated by reference therein, such as but not limited to the Annexes) shall be considered as one and the same document to form the entire Agreement between the Parties with respect to the Software to be delivered under this Agreement.


2.1.3. The terms and conditions described in this Agreement are valid for the Ordering Document which this Agreement accompanies.


2.2.Order of precedence


In the event of any ambiguity, inconsistency or contradiction between the aforesaid contractual documents, the order of precedence between them shall be as follows:


  • this Agreement without the Annexes;
  • the Annexes.
  1. INSTALLATION

3.1. The technical environment on which the Software will be installed is defined in Annex A “Documentation” hereto. You hereby agree to provide at Your own cost the Hardware and appropriate resources to install and Use the Software unless such Use is done through the Cloud whereby the Hardware is provided by Third Party Provider of Cloud Services.


3.2. Subject to Article 3.1, You are responsible for the installation of the Software on the Hardware pursuant to Annex A “Documentation” hereto. You shall perform any tests and/or checks in this respect including but not limited to tests and checks recommended in the Documentation.


  1. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

4.1. The Intellectual Property Rights on the Software and the Documentation shall remain the sole property of BLU AGE COMPANY or its licensors and are protected throughout the world by Intellectual Property Rights. No license, right or interest in BLU AGE COMPANY’s logos, or trademarks is granted to You under this Agreement and You hereby agree not to remove any product identification or notices of proprietary restrictions.


4.2. For the avoidance of doubt, nothing in this Agreement shall convey to You any title to or any rights in the Software including, but not limited to, all proprietary rights or ownership of any modifications or derivations thereof. Your sole right in relation to Software, or any Modifications, is to Use the same for the duration of this Agreement, under the terms and conditions contained herein.


4.3. All Intellectual Property Rights in, or relating to, the Software, and all Modifications, Enhancements, or Upgrades made thereto, and all patents, copyrights, or other proprietary rights related thereto are the sole and exclusive property of BLU AGE COMPANY or its licensors, whether they are arising directly or indirectly from You using the Software, or made by You, BLU AGE COMPANY or any of their employees or agents. You shall execute documents reasonably required by BLU AGE COMPANY to perfect such rights.


4.4. In particular, the Parties acknowledge that BLU AGE COMPANY and/or its Distributor(s) may disclose You a part of the source code of the Software to enable You a proper Use of the Software. In such event, any change or development made by You to the source code of the Software of any nature whatsoever, or produced by or as a result of, or related to the source code of the Software provided hereunder by BLU AGE COMPANY, shall be the sole and exclusive property of BLU AGE COMPANY. Nothing contained in this Agreement shall be deemed to provide greater rights with respect to the Software than those provided in this Agreement.


  1. RIGHTS GRANTED AND LIMITS OF USER RIGHT

5.1. In consideration of Your payment of the License Fee, BLU AGE COMPANY grants You a personal, non-exclusive, non-transferable and limited license to Use the Software in accordance with the terms and conditions of the Agreed Type of License as set out in Annex B Each agreed Type of Licence is independent from each other.


5.2. Upon BLU AGE COMPANY’s acceptance of Your Ordering Document, the sole right granted to You under this Agreement is the right to Use the Product in accordance with the agreed Type of Licence and the provisions of this Agreement. The term of the Licence is specified in the Ordering Document and the term of the Licence Certificate provided to You by BLU AGE COMPANY or its Distributor(s) shall be granted accordingly.


5.3. The Use of the Software shall be limited to the number of Licence Certificate delivered to You by BLU AGE COMPANY or its Distributor(s). You acknowledge that BLU AGE COMPANY has no delivery obligation and will not ship Copies of the Product to You as part of the services.


5.4. You shall not either, Yourself or with the assistance of others :


  1. reproduce, modify, translate, adapt and arrange all or part of the Software;
  2. correct the Software;
  3. disassemble or decompile the Software, nor create a software product derived from the Software;
  4. modify the source code of the Software, nor integrate the Software in any manner whatsoever into another software product.

5.5. You shall not delete any markings or declarations relating to the Intellectual Property Rights, trademarks or any other notices, legends, or information relating to the protection and/or ownership of Intellectual Property Rights in the Software or Documentation provided by BLU AGE COMPANY.


5.6. You shall not pledge, sell, distribute, grant, sub-license, lease, lend, whether on a free basis or against payment, or grant access on a time-sharing basis or any other utilisation of the Software, whether in whole or in part for the benefit of a third party.


5.7. You shall not grant or sub-license to any third party the right to Use the Software in any manner, including but not limited to, any outsourcing, loan, commercialisation of the Software, or commercialisation by merging the Software in another software or adapting the Software.


5.8If You use Open Source software in conjunction with the Software, You must ensure that Your use does not:


  1. create, or purport to create, obligations to BLU AGE COMPANY and/or its licensors with respect to the Software; or
  2. grant, or purport to grant, to any third party any rights to or immunities under BLU AGE COMPANY Intellectual Property Rights in the Software and/or its licensors' Intellectual Property Rights in the software. In particular, You also may not combine the Software with programs licensed under the GNU General Public License ("GPL") or any other similar licence in any manner that could cause, or could be interpreted or asserted to cause, the Software or any parts thereto to become subject to the terms of the GPL or the terms of the related licence. "Open Source" software used herein shall mean software that is available without charge for use, modifications and distribution and is often licensed under terms that require the user to make the user' s modifications to the Open Source software or any software that the user 'combines' with the Open Source software freely available in source code; or
  3. violate the respective Open Source licenses and related terms and conditions.
  1. REPRESENTATIONS - WARRANTIES

You represent and warrant You have the full power and authority to enter into this Agreement and to grant BLU AGE COMPANY the rights granted herein.  You represent and warrant that any content You provide to BLU AGE COMPANY and/or Distributor does not and shall not violate or infringe any Intellectual Property Right of any third party.


  1. CONDITIONS OF USE

7.1. Conformity with the Documentation


7.1.1. You shall Use the Software and ensure that the Software is used in the technical environment described in the Documentation, and that You are properly trained to Use the same in accordance with said Documentation.


7.1.2. You shall ensure that any of Your own software, program, material or any part thereof can be fitted on and interfaced with the Software so that the performance, reliability and safety of the Software, or any part thereof shall not be, or threatened to be modified, altered, or limited due to such fitting and interface.


7.2. Inspection and audit by BLU AGE COMPANY


BLU AGE COMPANY shall be entitled to enter Your premises to check whether the conditions specified above are fulfilled, and shall be entitled to inspect and/or audit as necessary all User's equipment and system on whichever site, at any time and from time to time, on the following conditions:


  1. BLU AGE COMPANY shall have access to all technical data as is necessary for the purpose of the inspection and/or audit;
  1. BLU AGE COMPANY shall be entitled to conduct any such inspection and/or audit at Your facilities and at the facilities of Your authorised sub-contractors, as the case may be.

7.3. Interface


7.3.1. If, at any time during the performance of this Agreement, You suspect that any of Your own software, program, material or any part thereof cannot be fitted on and /or interfaced with the Software without threatening to modify, alter or limit the performance, reliability and safety of the Software, You shall promptly notify BLU AGE COMPANY and correct Your system, in whole or in part, within eight (8) days of such notification. If You fail to correct Your system in due time, then BLU AGE COMPANY shall be entitled to terminate this Agreement immediately according to Article 11 of this Agreement.


7.3.2. If it is determined that the technical problem is attributable in whole or partially to the Software, BLU AGE COMPANY shall use its best endeavours to correct the Software or have it corrected, but it shall not replace the Software unless a new agreement is signed between BLU AGE COMPANY and You.


  1. Third Party Software – ADDITIONAL TERMS

8.1. Third Party Software


The Products may operate or interface with software or other technology that is licensed to BLU AGE COMPANY from third parties (“Third Party Licensors”), which is not proprietary to BLU AGE COMPANY, but which BLU AGE COMPANY has the necessary rights to license to You (“Third Party Software”). You agree that:


  1. You will use such Third Party Software described in Annex A in accordance with this Agreement;
  2. no Third Party Licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to You concerning such Third Party Software or the products themselves, as the case may be;
  3. no Third Party Licensor will have any obligation or liability to You as a result of this Agreement or Your use of such Third Party Software;
  4. such Third Party Software may be licensed under license terms which grant You additional rights or contain additional restrictions in relation to such Third Party Software, beyond those set forth in this Agreement, and such additional license rights and restrictions are described under article 8.2 of this Agreement.

8.2. Additional Terms


Any third party components or third party provider of services, including but not limited to Third Party Software or third party provider of cloud computing services (“Third Party Provider of Cloud Services”), will be identified by BLU AGE COMPANY in the Documentation or elsewhere (www.bluage.com) (“Identified Component”), as being subject to different agreement terms and conditions (such as but not limited to disclaimer of warranty, limited warranty, liability etc.) and any other terms (“Additional Terms”) than those set forth in this Agreement. You agree for such Additional Terms for any such Identified Component.


  1. OBLIGATIONS - CONFIDENTIALITY

9.1. Obligations


You agree to do each of the following: (i) comply with all applicable laws, rules and regulations, including those regarding data privacy, copyright, and export control, and the terms of this Agreement; (ii) pay the fees for the Licenses when due; (iii) use reasonable security precautions for providing access to the Product by Your employees or other individuals to whom BLU AGE COMPANY provides access including private keys and other security options; (iv) cooperate with BLU AGE COMPANY’s reasonable investigation of outages, security problems, and any suspected breach of this Agreement; (v) comply with all license terms or terms of Use for the Product, any software, content, service or website You use or access when using the Product; (v) use commercially reasonable efforts to prevent unauthorized access to or Use of the Product and immediately notify BLU AGE COMPANY or its Distributor(s) of any known or suspected unauthorized Use of the Product, or any other breach of security.


9.2. Confidentiality


Except as otherwise stipulated in this Agreement, the provisions on confidentiality shall apply. In any event, You agree to accept and retain the Product in confidence. In particular You acknowledge that the structure, organization, and source code of the Software are the proprietary confidential information of BLU AGE COMPANY and its licensors. You agree not to provide or disclose any such confidential information in the Software or derived from it to any third party.


In this respect, You agree to take appropriate action by instruction, agreement or otherwise to inform any users of the confidential nature of the Product and to satisfy its obligations under this Agreement with respect to the Use, copying, protection and security of the Product.


  1. WARRANTY – WAIVER

10.1. Warranty


10.1.1BLU AGE COMPANY warrants to You only that:

  1. For the duration of the Licensed Software defined in the Ordering Document, and from the date of purchase (the “Licensed Software Warranty Period"):
  • the Software will perform substantially in accordance with the Documentation set out under Annex A and that the Software is operated in accordance with the Documentation on the designated Hardware; and
  • the Documentation adequately describes the operation of the Software in all material respects;
  1. provided always that You have a valid, fully paid up, unexpired License to Use the Software
      1. If BLU AGE COMPANY is notified in writing of a breach of the warranty for the Licensed Software described in Article 10.1.1 during the applicable Warranty Period, BLU AGE COMPANY’s entire liability and Your sole remedy (at BLU AGE COMPANY’s option) shall be to use its best endeavours to correct the functionalities of the Licensed Software and/or the Documentation, as the case may be, in accordance with BLU AGE COMPANY’s Functional Use Case Referential Procedure within a reasonable time or provide or authorize a refund of the Fee You have paid. In no event shall BLU AGE COMPANY’S refund of the Fee exceed the amounts paid by You for the Licensed Software. In any event, such refund shall not exceed the amounts paid by You for the Licensed Software during six (6) months.

10.2. Waiver, Release and Renunciation


10.2.1. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED UNDER ARTICLE 10.1, THE SOFTWARE IS PROVIDED “AS IS”. THE warranties, obligations and liabilities of BLU AGE COMPANY and your remedies set forth in this Agreement are exclusive, and you hereby waive, release and renounce all other rights, claims and remedies against BLU AGE COMPANY, express or implied, arising by law or otherwise, with respect to any non-conformity or defect in the Software delivered under this Agreement including but not limited to:


  1. any warranty against hidden defects;
  2. Any implied warranty of merchantability or fitness for particular purpose, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SATISFACTORY QUALITY, NON-INTERFERENCE, SECURITY, RELIABILITY, TIMELINESS;
  3. Any implied warranty arising from course of performance, course of dealing or usage of trade;
  4. Any obligation, liability, right, claim or remedy for loss or damage to any component, equipment, accessory or part thereof, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE, (INCLUDING ANY LOSS OR DAMAGE RELATED TO ANY THIRD PARTY SOFTWARE) EVEN IF BLU AGE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2.2In no event does BLU AGE COMPANY warrant THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS or that the Software is error free or that you will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, BLU AGE COMPANY does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.


10.2.3TO THE FULLEST EXTENT PERMITTED BY LAW, BLU AGE COMPANY DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE PRODUCT OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE PRODUCT AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH THE PRODUCTS AND SERVICES OR THROUGH ANY LINKS PROVIDED IN THE PRODUCTS AND SERVICES. BLU AGE COMPANY SIMILARLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE PRODUCT.


10.2.4TO THE FULLEST EXTENT PERMITTED BY LAW, BLU AGE COMPANY shall under no circumstances be liable for loss of use, revenue or profit or for any other direct, incidental, or consequential damages with respect to any non-conformity or defect in the Software delivered under this Agreement.


10.2.5You acknowledge and agree that BLU AGE COMPANY has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.


10.2.6Subject to ARTICLE 10.1 and 10.3 OF THIS aGREEMENT, ALL warranties ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY BLU AGE COMPANY, ITS SUPPLIERS, LICENSORS AND THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE.


10.3 Exclusion


10.3.1.TO THE EXTENT THAT BLU AGE COMPANY MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.


10.3.2IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND BLU AGE COMPANY BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY YOU FOR THE LICENCED PRODUCT DURING SIX MONTHS. IN NO EVENT SHALL BLU AGE COMPANY’S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCT.


  1. TERMINATION

This Agreement and Your rights under it will commence from the date of purchase of the Product defined in the Ordering Document and shall remain in effect for the duration of the rights granted under it unless terminated earlier as stated above. As such, Your right to Use, and Your access to, the Product will automatically terminate on expiry of the License Term of the Agreed Type of License unless, and until You renew the License for the Product. Except as expressly set forth herein, all Fees paid or payable are non-refundable to the extent permitted by law.


11.1. Termination for default


BLU AGE COMPANY may terminate if (i) You fail to pay the Fee in accordance with the agreed payment terms; or (ii) You fail to comply with any of the terms and conditions of this Agreement regardless of whether notice is given by BLU AGE COMPANY or BLU AGE COMPANY has knowledge of the breach as stated above, which shall remain an option at BLU AGE COMPANY discretion.


Subject to the provision above, if You breach or fail to observe any of Your obligations under this Agreement, BLU AGE COMPANY may serve You with a written failure notice at any time, and by any means (Email, letter, registered letter with acknowledgement of receipt etc.). If You do not remedy such breach or failure within five (5) days of notification, You agree that this Agreement may be terminated by BLU AGE COMPANY in its entirety, by delivery to You of a notice of termination. Such notice of termination shall be in any form (Email, letter, registered letter with acknowledgement of receipt etc.), and termination of the Agreement shall become effective five (5) days after its transmission.


Such notice of termination does not release You from fulfilling Your obligations under this Agreement until the effective date of termination, without prejudice to any recourse that may be exercised by BLU AGE COMPANY.


11.2.Termination without default


In the event of termination of any other contract, including this Agreement, as part of the services provided by BLU AGE COMPANY (and implemented through an Ordering Document), this Agreement shall automatically terminate at the effective date of termination indicated in the Ordering Document and/or such contract.


11.3Notice of Termination


Termination of this Agreement shall become effective five (5) days after transmission by BLU AGE COMPANY of the notice of termination (if any) in any form (Email, letter, registered letter with acknowledgement of receipt etc.). Such notice of termination does not release You from fulfilling Your obligations under this Agreement until the effective date of termination, without prejudice to any recourse that may be exercised by BLU AGE COMPANY.


11.4. Consequences of termination


At the effective date of termination:


  1. All the rights vested in You under this Agreement shall automatically terminate;
  2. You shall cease to Use and, destroy or return all Copies (if any) of the Software and the Documentation provided by BLU AGE COMPANY and/or its Distributor(s) at Your own risks and expenses;
  3. Any access to the Licensed Software through a Third Party Provider of Cloud Services shall be terminated; and
  4. BLU AGE COMPANY shall be entitled to claim compensation for any damage resulting from or connected with Your default.
  1. EXPORT CONTROL AND ANTI-BRIBERY COMPLIANCE

You hereby agree that You will Use, disclose and/or transport the Product in accordance with any applicable export control laws and regulations and will not (directly or indirectly) re-export or re-transfer the Product to any destination subject to restrictive sanctions measures, or trade embargoes implemented at a national, regional or international level, without the appropriate authorization, and that You are solely responsible for fulfilling any applicable governmental requirements in connection with Your Use, disclosure, and/or transport of the Product, and relating to any transfer as the case may be.

You warrant and represent that in entering into this Agreement neither You nor any of Your officers, employees, agents, representatives, contractors, intermediaries or any other person or entity acting on Your behalf will take any action, directly or indirectly, that would constitute an offence under any other applicable anti-bribery laws or regulations anywhere in the world.

Any breach or suspected breach of this Article 12 shall be a material breach incapable of remedy thereby entitling BLU AGE COMPANY to terminate this Agreement forthwith. In addition, You agree to indemnify and hold BLU AGE COMPANY harmless from and against any claim, loss, liability or damage suffered or incurred by BLU AGE COMPANY resulting from or related to Your violation of this Article 12.

  1. DATA PROTECTION

You shall be responsible for the security of Your information system, and more particularly for any breach of the obligation of confidentiality as defined in this Agreement.

Each Party shall comply with applicable Laws and Regulations relating to the protection of personal data (including but not limited to (i) those deriving from The European Directive n° 95/46/EC on the protection of individuals with regards to the processing of personal Data, (ii) those deriving from United States Privacy Laws and Regulations and (iii) guidelines and guidance notes issued from time to time by any relevant local authorities and maintain all necessary registrations as required under such applicable Laws and Regulations, guidelines and guidance note.

  1. APPLICABLE LAW - SETTLEMENT OF DISPUTES

14.1.As You can be located in various countries when using the Product, the Parties acknowledge the need of having a clause of settlement of disputes with different jurisdiction clause as set out hereunder.


14.1 If Your residence or Your headquarters are established in the European Union or in Switzerland, this Agreement, as well as any dispute relating to this Agreement, or secondary services, will be governed by the French law. All potential disputes, whatever they may be, will be subject to the exclusive jurisdiction of the Paris Court (France), even in summary judgement, incident application, introduction of third party, or multiple co-defendants.


14.2.Should Your residence or Your headquarters be established outside of Switzerland or of countries of the European Union, this Agreement, as well as any dispute relating to this Agreement, or secondary services, will be governed by the New York law (United States of America). All the potential disputes, whatever they may be, will be subject to the exclusive jurisdiction of the New York Courts and Federal Court, even in summary judgement, incident, application, introduction of third party, or multiple co-defendants.


14.3Without prejudice to the previous statements, BLU AGE COMPANY can, if needed, take You or any other related party, to the court of Your residence or Your headquarters, the applicable law being that of Your head office or home.


14.4The application of the Vienna Convention of the United Nations on International Sale (Dated April 11th 1980) is excluded.


  1. MISCELLANEOUS

15.1. Independence of the Parties


The Parties shall act at all times in total independence of each other and no provision of the Agreement may be interpreted as creating a subsidiary, a joint enterprise or a de facto the Supplier.


15.2. Non-waiver


The fact that a Party does not invoke the application of one of the provisions of the Agreement, or accepts its non-performance, permanently or temporarily, cannot constitute a waiver by this Party of its right to apply this provision, or any other provision of the Agreement, at a later date.


15.3. Entire agreement


This Agreement (together with any documents referred to in it as forming part of it) constitutes the entire agreement between the Parties in relation to the subject matter referred to in this Agreement and supersedes and excludes all previous agreements, arrangements, statements and representations in relation to such subject matter, unless expressly incorporated herein by the terms of this Agreement.


15.4. Amendment


Neither this Agreement nor any provision hereof may be amended, supplemented, waived, or modified, except by a specific writing, entitled as an amendment and specifically referring to this Agreement, that is signed by an authorised officer of each Party. This Agreement may not be amended or waived by any course of conduct.


15.5. Severability


If:

      1. any provision of this Agreement shall be finally determined by a court of competent jurisdiction to be illegal, invalid or unenforceable in whole or in part in any jurisdiction for any reason; and
      2. any right or obligation of a Party shall be materially and adversely affected thereby,

then such provision shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability, without invalidating or rendering unenforceable any other provision of this Agreement, and any such illegality, invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Parties shall negotiate in good faith to replace such provision with an appropriate, legal provision and, to the extent permitted by law, hereby waive any provision of law that renders any provision of this Agreement invalid or unenforceable in any respect.


15.6. Assignment


BLU AGE COMPANY may assign any of its liabilities or obligations under this Agreement without Your prior written consent.

Any notices required to be given in writing to BLU AGE COMPANY or any questions concerning this Agreement should be addressed to : helpdesk@bluage.com or contact@bluage.com


ANNEXES


ANNEX A - DOCUMENTATION (description of the Software functions and/or technical environment – Use of the Software, Additional Terms etc.)


  • Available on line at:

http://www.bluage.com

If You have acquired a License for the Product from BLU AGE COMPANY through a Third Party Provider of Cloud Services it will be used in conjunction with a UML2 editor such as Magic Draw from No Magic Inc (for specific condition of use please refer to Annex D) .


Any Use of a License for the Product from BLU AGE COMPANY made available through a Third Party Provider of Cloud Services constitutes Your acceptance of the terms and conditions of the relevant Third Party Provider of UML2 Editor.


ANNEX B - Agreed Type of Licence


1.Trial License


The terms of this Article 1 are applicable to You if You have acquired a Trial License for the Product from BLU AGE COMPANY or its Distributors(s). In order to evaluate the Product, You may install the Product, on a temporary basis for trial, evaluation, and for non-commercial purposes only (the "Evaluation Period").


  • The Evaluation Period is limited to the period of time specified to You by BLU AGE COMPANY or its Distributors(s) in the License Certificate. At the end of the Evaluation Period or of the authorized period of time, such License to Use the Product expires.
  • During the Evaluation Period or for the agreed limited Period, BLU AGE COMPANY or its Distributors(s) grant You a personal, non-exclusive, non-transferable and limited license to Use the Product solely for evaluation purposes. THE PRODUCT CONTAINS A TIME-OUT FEATURE THAT DISABLES ITS OPERATION AFTER THE EXPIRATION OF THE EVALUATION PERIOD. UPON EXPIRATION OF THE EVALUATION PERIOD, THOSE APPLICATIONS MAY NO LONGER RUN. YOU SHOULD THEREFORE TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT.
  • In order to Use the Product after the Period, You must obtain from BLU AGE COMPANY a License Certificate outlining in particular the Agreed Type of License in accordance with the terms and conditions of this Agreement.
  • You may not Use the Product during the Evaluation Period for any commercial, business, governmental or institutional purpose of any kind.
  • At the end of the Evaluation Period, further Use of the Product by You is prohibited without the purchase of a commercial license to obtain a License Certificate. If You do not purchase a License for the Product at the end of the Period, You hereby agree to permanently remove or delete the Product from all computer systems, including Servers, and workstations, on which it was installed and destroy any Software and Documentation received, and not to reinstall the Product. If You desire to continue to Use the Product following the Period, You should contact BLU AGE COMPANY to order commercial licenses to Use the Product.

If You have acquired a Trial License for the Product from BLU AGE COMPANY through a Third Party Provider of Cloud Services, You agree to be subject to specific terms and conditions; as such You should refer to the terms and conditions imposed by such Third Party Provider of Cloud Services as listed under Annex C of this Agreement.


For the avoidance of doubt, any specific terms and conditions imposed by such Third Party Provider of Cloud Services are in addition to, not in lieu of, the terms and conditions of this Agreement. As a consequence, You are subject to such Additional Terms as defined under Article 8.2 of the Agreement of the associated Cloud Services’ agreement which are described in the applicable Documentation, the relevant BLU AGE COMPANY webpage, and/or within the Product itself.


2.Floating License


The terms of this Article 2 are applicable to You only if You have acquired a Floating License, for any edition of the Product, directly from BLU AGE COMPANY or its Distributor(s). Subject to the terms and conditions of this License, BLU AGE COMPANY or its Distributor(s) grant(s) You a personal, non-exclusive, non-transferable and limited license, for the duration specified in the License Certificate, to:


  1. Use the Product on computers, from the network server identified on the License, and only for Use by the number of simultaneous users specified in the License Certificate (“Designated Number of Users”), to be run simultaneously in no more than the designated number of processes, which means the number of simultaneous processes in which the Product run [as specified in the License Certificate] (“Designated Number of Processes”).
  1. Permit no more than the Designated Number of Users to Use the Product, and the Product to be run simultaneously in no more than the Designated Number of Processes only for Your internal business purposes. The number of simultaneous users of the Software may not exceed the Designated Number of Users and virtualization may not be used to increase the number of simultaneous users.
  1. make an archival copy of the Product solely for emergency back-up purposes.

The Product functionalities are those described in the Documentation described in Annex A of the Agreement and delivered with the Product. You may purchase from BLU AGE COMPANY additional licenses to permit additional Designated Number of Users to Use the Product. For the avoidance of doubts, such License shall be for Use, only by the equivalent Designated Number of Users for whom You have paid the applicable license Fees and obtained a License Certificate.


The Product may be used exclusively by the Designated Number of Users on the Designated Number of Processes, subject to all the terms and conditions of this Agreement. You agree that You will not designate more Users than the Designated Number of User Licenses that BLU AGE COMPANY or its Distributor(s) has expressly granted to You. All rights not specifically granted to You herein are retained by BLU AGE COMPANY.


If You have acquired a Floating License for the Product from BLU AGE COMPANY through a Third Party Provider of Cloud Services, You agree to be subject to specific terms and conditions; as such You should refer to the terms and conditions imposed by such Third Party Provider of Cloud Services as listed under Annex C of this Agreement.


For the avoidance of doubt, any specific terms and conditions imposed by such Third Party Provider of Cloud Services are in addition to, not in lieu of, the terms and conditions of this Agreement. As a consequence, You are subject to such Additional Terms as defined under Article 8.2 of the Agreement of the associated Cloud Services’ agreement which are described in the applicable Documentation, the relevant BLU AGE COMPANY webpage, and/or within the Product itself.


3‘Territory’ means the geographical area in which the Product may be used.


The Use of the Product in the Territory shall be done within the Territory and subject to the export restrictions set forth in this Agreement. Territory may be any one, and only one, of the following three geographic areas: Americas Territory, EMEA Territory or Asia Pacific Territory each as defined below.


Unless otherwise identified in Your License Certificate, You may determine the relevant Territory at the time of installation of the Product onto a computer or machine by installing the Product in that one Territory.


The geographic Territories are:


  1. Americas Territory’ including and limited to those geographical areas found within the boundaries of North and South America.
  2. Europe, Middle East and Africa Territory’ or ‘EMEA Territory’ including and limited to those geographical areas found within the boundaries of Europe, Middle East and Africa, including countries that fall into one or more of the following: member countries of the European Community; the countries of the former Yugoslavia; all the countries of the Arab Middle East; the countries of the former Soviet Union; all the countries of Africa, Madagascar, and the Islands of the South Indian Ocean; and the countries or regions Albania, Andorra,  Guernsey, Iceland, Iran, Isle of Man, Israel, Jersey, Liechtenstein, Malta, Monaco, Norway, San Marino, Switzerland and Turkey.
  3. ‘Asia Pacific Territory’ or ‘AsiaPac Territory’ including and limited to those geographical areas found within the boundaries of Asia and Australia/Pacific including South Korea, Japan, China, Taiwan, Hong Kong, and Macau India, Maldives, Pakistan, Myanmar, Nepal, Bhutan, Bangladesh, Thailand, Laos, Cambodia, Vietnam, Singapore, Malaysia.

ANNEX C - Terms and Conditions FOR Cloud COMPUTING Services

If You have acquired a License for the Product from BLU AGE COMPANY made available through a Third Party Provider of Cloud Services, You shall refer to the terms and conditions imposed by such Third Party Provider of Cloud Services.


Any Use of a License for the Product from BLU AGE COMPANY made available through a Third Party Provider of Cloud Services constitutes Your acceptance of the terms and conditions of the relevant Third Party Provider of Cloud Services.


For the avoidance of doubt, all terms and conditions imposed by a Third Party Provider of Cloud Services are in addition to, not in lieu of, the terms and conditions of this Agreement.


HP Cloud Services TERMS AND CONDITIONS


If the Product is provided through HP Cloud Services, any Use constitutes Your acceptance of HP Cloud Services terms and conditions in addition to License terms and conditions.


You must refer to HP website to consult the latest version of HP terms and conditions.


https://www.hpcloud.com/legal_docs


Windows Azure services TERMS AND CONDITIONS


If the Product is provided through Windows Azure services, any Use constitutes Your acceptance of Windows Azure Services terms and conditions in addition to License terms and conditions.


You must refer to Windows Azure website to consult the latest version of Windows Azure terms and conditions.


https://www.windowsazure.com/en-us/support/legal/


ANNEX D1 : EULA FOR MAGIC DRAW FROM NO MAGIC INC


END-USER LICENSE AGREEMENT FOR MAGICDRAW(R) UML SOFTWARE


THE SOFTWARE CONTAINS AN AUTOMATIC ON-LINE REGISTRATION FEATURE THROUGH WHICH THE SOFTWARE REGISTERS ITSELF WITH NO MAGIC, INC. ("NO MAGIC") ON NO MAGIC'S SERVERS. THE SOFTWARE WILL AUTOMATICALLY REGISTER ITSELF WITH NO MAGIC WHEN THE CPU (AS DEFINED BELOW) ON WHICH IT IS INSTALLED ESTABLISHES AN INTERNET CONNECTION. THE AUTOMATIC REGISTRATION PROCESS MAY BE DONE ENTIRELY IN THE BACKGROUND AND NO SCREENS OR OTHER DATA IS DISPLAYED ON YOUR COMPUTER SCREEN DURING THE REGISTRATION PROCESS. ONLY INFORMATION CONCERNING THE IDENTITY OF THE USER AND THE SOFTWARE INSTALLED AND ITS SPECIFICS IS COLLECTED THROUGH THE REGISTRATION PROCESS AND THE CONFIDENTIALITY AND PERMITTED USE OF THAT INFORMATION IS GOVERNED BY NO MAGIC'S PRIVACY POLICY, AS AMENDED FROM TIME TO TIME.


IMPORTANT! THIS AGREEMENT IS A CONTRACT. NO MAGIC IS WILLING TO LICENSE THE SOFTWARE TO YOU AS AN INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERENCED BELOW AS "YOU" OR "YOUR") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS END-USER LICENSE AGREEMENT ("AGREEMENT"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND NO MAGIC. BY CLICKING ON THE "AGREE" OR "YES" BUTTON OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING OR INSTALLING ALL OR ANY PART OF THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITION OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK ON THE "I DO NOT AGREE, "NO" BUTTON, OR OTHERWISE INDICATE REFUSAL AND DO NOT INSTALL OR MAKE FURTHER USE OF THE SOFTWARE.


1.License. The MagicDraw UML computer program in the edition provided, the related applications and plug-ins, including, without limitation, MagicDraw Open Application Program Interface, MagicDraw File Converter and MagicDraw Resource Editor and documentation that accompanies this license (collectively, the "Software") is the proprietary property of No Magic or its licensors and is protected by the copyright law of the United States and other countries and by international treaty provisions. While No Magic continues to own the Software, upon Your acceptance of this license, You will have a personal, non-transferable, non-exclusive license to use, in machine-readable, object code format only, the quantity of the Software for which You have paid the applicable license fee. This Agreement governs any releases, revisions, or enhancements to the Software that No Magic may furnish or make available to You. The limits provided for in this Agreement shall apply to use of the Software or any portion thereof. YOU MAY NOT USE, COPY, MODIFY, OR TRANSFER THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS MAY BE SPECIFICALLY AUTHORIZED IN THIS AGREEMENT.


2.Permitted Use. The license granted under this Agreement permits You to do only each of the following, and all other rights are expressly reserved by No Magic:


(a)Use the Software only in the manner described in the Software documentation and only on computers which have the minimum system requirements described in the Software documentation;


(b)Install and use the Software only in a manner authorized by the type of license and edition of the Software for which You have paid the applicable license fee to No Magic, as further described in Section 4;


(c)Create no more than one copy of the Software in machine-readable form for backup purposes only, provided that You must include No Magic's copyright and other proprietary notices on such copy;


(d)Utilize the Software documentation only in conjunction with the use of the Software;


(e)Utilize the functionality of the Software with other applications or augment the functionality of the Software solely for Your licensed use through the MagicDraw UML Open Application Program Interface; and


(f)Utilize the functionality of the Software with other applications through the MagicDraw UML Open Application Program Interface to create plug-ins for use by You and permitted users in conjunction with licensed use of the Software.


3.Prohibited Acts. Any use of the Software, except as specifically authorized herein, is prohibited. By way of illustration and not of limitation, You may not:


(a)transfer, sublicense, network, loan, lend, distribute, rent, modify, translate, disassemble, decompile, reverse engineer, translate the Software into another computer language, otherwise reduce the Software to human perceivable form, create derivative works based upon the Software other than as otherwise provided herein, or copy or use the Software and/or the Software documentation in violation of this Agreement.


(b)run multiple instances of the Software;


(c)install the Software on a server and deploy the Software for use over a network, except as may be specifically authorized below where You have purchased a Floating License or Teamwork Server License; provided, however:


(i)the Software may be deployed so that program files are backed up over a network only for archival purposes;


(ii)the initial installation of the Software as well as installation of subsequent versions, replacement copies, re-installations and updates of the Software may be performed over a network (such installations are at times referred to as "silent installs");


(d)Use a previous version or copy of the Software after You have received or been provided access to an upgraded version; or


(e)Use the Software in any manner not authorized by this Agreement.


4.Scope of License. The rights granted above and the rights described in this Section are conditioned upon You paying the license fee (if one is required) which establishes Your rights under this Agreement as to a specific license type described in this Section. If no license type is specified at the time of license, only a Single User Single Installation License is granted. If You are a legal entity other than an individual, then You shall designate one (1) or more individuals, as applicable based upon Your license type, within Your organization and provide such designation to No Magic and only those designated individuals shall have the right to use the Software. Except as specifically set forth below, all of the conditions, limitations, and restrictions set forth elsewhere in this Agreement are applicable to each license type. Not every license type is available for every edition of the Software. The types of licenses and their particular associated rights and limitations are:


(a)Single User Single Installation License. For each copy of the Software that You have licensed from No Magic, You may only install that copy of the Software on one (1) central processing unit ("CPU") controlled by You for use by a single user. For purposes of this Agreement, the fact that multiple processors are installed on a single chassis shall be disregarded.


(b)Single User Multiple Installation License. For each copy of the Software that You have licensed from No Magic, You may install that copy of the Software on multiple CPUs owned and/or controlled by You for use by a single user.


(c)Mobile User License. For each copy of the Software You have licensed from No Magic, You may only install and use that copy of the Software:


(i)On one (1) CPU controlled by You and located at Your place of business or employment and which CPU is assigned to You;


(ii)On one (1) CPU located at Your personal residence; and


(iii)On one (1) CPU in a portable computer (e.g. a laptop computer) which is used by You.


PROVIDED, HOWEVER, that the Software may only be used by You and no other person at the foregoing locations and PROVIDED FURTHER, HOWEVER, that at no time may the Software be running simultaneously at more than one (1) of the foregoing locations. Over installations of the software per the license purchased will not be tolerated. No Magic has the right to invoice and bill for each over installation and will invoice at full price for each copy of the over installed software. By clicking on the "AGREE" or "YES" button or by otherwise indicating acceptance of this End-User License Agreement you agree to be billed for each over installed software. No Magic electronically registers each installation of software on a per license purchased basis. Pre-installation support is available via email at support@magicdraw.com to assist customers with questions or installation issues.


(d)Floating License. For each copy of the Software You have licensed from No Magic, You may only install and use that copy of the server software part of the Software on one (1) CPU controlled by You and You may install the client part of the Software on multiple CPUs controlled by You; PROVIDED, HOWEVER, You may not have more simultaneous users using the client part of the Software than the maximum number of copies of the edition of the Software for which You have purchased as license.


(e)Teamwork Server License. For each copy of the Software You have licensed from No Magic, You may only install and use that copy of the teamwork server Software on one (1) CPU controlled by You. Further, You may not have more persons connecting to and using the teamwork server concurrently than the number of users authorized by No Magic at the time of the purchase of the license to the Software.


(f)Demonstration and Evaluation License.


(i)Demonstration and evaluation editions of the Software are subject to time and functionality limitations established by No Magic from time to time. Demonstration and evaluation editions may only be used by You for learning more about the Software for purposes of making an informed buying decision and not for any other business or commercial uses. You agree not to circumvent or attempt to circumvent the restrictions placed upon demonstration or evaluation editions by No Magic.


(ii)Notwithstanding the foregoing, No Magic may, in its sole and absolute discretion, provide a time delimited evaluation copy to You in those instances where the Software is sold or delivered to You and payment of the license fee is not received contemporaneously by No Magic. You may use the time delimited copy of the Software for business and commercial or academic uses during the time delimited period. If payment of the license fee is not received within the time delimited period, the Software will time out and cease to function, and You will be unable to access the Software or any of the files or other data created with the Software prior to the end of the time delimited period. Upon No Magic's receipt of the license fee, No Magic will provide You with an installation key which removes the time delimited feature of the Software. Upon expiration of the time delimited period and until No Magic receives the license fee and issues an installation key to You, You agree not to use the Software. You further agree not to circumvent or attempt to circumvent the restrictions placed upon demonstration or evaluation editions by No Magic.


(g)Academic Institution License. This type of license is only available to bona fide schools of education and institutions of higher learning. The Software may only be installed on CPUs owned or controlled by the academic institution and located at the academic institution's premises. Academic editions shall not be used for any business or commercial purposes. For purposes of this paragraph G, "business or commercial purposes" shall mean all activities other than providing training and instruction to students and preparation by faculty and teachers for purposes of providing training and instruction. "Business or commercial purposes" shall include, but is not limited to, use of the Software for development of programs and applications for use by the academic institution internally. Furthermore, any documents produced by the Software shall contain as a legend, watermark or other depiction the following statement: "For Academic Use Only-All Commercial Uses Are Prohibited" or similar statement. In addition to the foregoing, any license of an Academic Edition or an Academic Edition Site License which is granted by Licensor gratuitously shall be for a term which shall run through December 31st of the year following the year in which the license under this Agreement was first granted, and may be automatically extended for additional one (1) year periods, so long as the academic institution is in full compliance with the terms of this Agreement and this Agreement has not been otherwise terminated. Further, any license of an Academic Edition or an Academic Edition Site License which is granted by No Magic gratuitously, may be terminated by No Magic for any reason or for no reason at the end of any yearly term upon thirty (30) days' written notice to the academic institution.


(h)Site Licenses. A Site License enables copies of certain editions of the Software to be installed and used (subject to the limitations and restrictions for such edition herein set forth) on Site Licensed CPUs located at the User Site (as defined below) specified at the time of the license grant. If no separate Site License Agreement is executed in writing by the parties and no User Site is specified at the time of the license grant, then no site license is granted. A "Site Licensed CPU" means every CPU owned or under Your control and located at the User Site, the location of which is specified at the time of the license grant and on which a copy of the appropriate license type/edition of the Software is installed and registered with No Magic through its Internet-based automatic registration system. For an academic institution, a "Site Licensed CPU" is every CPU owned or under the control of the academic institution, its faculty members, or students and located either at the User Site or at the personal residence of the faculty member or student or other place where a computer belonging to or under the control of the faculty member or student is located, and on which a copy of the appropriate edition of the Software is installed and registered with No Magic through its Internet-based automatic registration system. A "User Site" means one (1) of Your places of business that You identify and which is expressly accepted by No Magic in a separate written document executed by an authorized representative of No Magic or, if You are an academic institution, then one (1) of Your campuses identified by You and which is expressly accepted by No Magic in a separate written document executed by an authorized representative of No Magic.


5.Limited Functionality; Ancillary Programs. The following editions of the Software and ancillary computer programs comprising the Software are subject to the terms and conditions of this Agreement, including, without limitation, the license type specific conditions and limitations set forth in the preceding Section:


(a)File Converter. You may use the MagicDraw File Converter to convert MagicDraw files from the .mdf format and translate them into xmi format.


(b)Resource Editor. You may use the MagicDraw Resource Editor to customize MagicDraw program commands and to translate MagicDraw program commands from one spoken language to another.


(c)MagicDraw Reader Edition. The MagicDraw Reader Edition will only enable You to open, view and print MagicDraw and imported files (.mdf, xml and .xml.zip). You will not be able to modify, translate, save or otherwise manipulate the data contained in MagicDraw files.


6.No Support or Maintenance. No Magic is not obligated to provide any maintenance or support services for the Software or any upgrades or enhancements under this Agreement. You may purchase from No Magic maintenance and support pursuant to the terms, conditions, and pricing of No Magic's maintenance and support agreement as in effect on the date of Your purchase. Any upgrades, enhancements, or supplements provided to You as part of the support services or otherwise, shall become a part of the Software and subject to the terms and conditions of this Agreement. With respect to technical information You provide to No Magic as part of the support services, No Magic may use such information for its business purposes, including for product support and development. No Magic will not utilize such technical information in a form that personally identifies You.


7.Termination. Subject to earlier termination as dictated by Your license type, this Agreement shall terminate immediately and automatically (without notice from No Magic and without refund) upon Your breach of any term contained herein. Upon termination of this Agreement, You agree to cease use of the Software and to either destroy or return to No Magic the Software, Software diskettes and other media, the Software documentation, and all copies thereof and to certify the foregoing in writing to No Magic. You may terminate Your rights granted by this Agreement at any time (without refund) in the manner set forth in the immediately preceding sentence. In the event of termination, all provisions of this Agreement will survive except those pertaining to license grant.


8.Disclaimer of Warranties. The Software is provided "AS IS" and "WITH ALL FAULTS" without a warranty of any kind. ANY WRITTEN OR ORAL INFORMATION OR ADVICE GIVEN BY NO MAGIC, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, RESELLERS, AGENTS, OR SUPPLIERS WILL IN NO WAY INCREASE THE SCOPE OF LIABILITY OR CREATE A WARRANTY, NOR MAY YOU RELY UPON ANY SUCH WRITTEN OR ORAL COMMUNICATION. ALL EXPRESS WARRANTIES UNLESS SPECIFICALLY STATED HEREIN AND ALL IMPLIED WARRANTIES ON THE SOFTWARE, MEDIA, AND DOCUMENTATION INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, PERFORMANCE AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND NON-INTERFERENCE WITH ENJOYMENT OF THE SOFTWARE ARE DISCLAIMED. NO MAGIC DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR THAT THE SOFTWARE WILL BE ERROR-FREE.


9.Disclaimer of Damages. SOME STATES AND COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOLLOWING LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL NO MAGIC BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, DAMAGES FROM BUSINESS INTERRUPTION, LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF NO MAGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL NO MAGIC'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE SOFTWARE. The disclaimers and limitations set forth above will apply regardless of whether You accept the Software.


10.Government Restricted Rights. If the Software is acquired under the terms of a GSA contract, use, reproduction or disclosure is subject to the restrictions set forth in the applicable ADP Schedule contract. If the Software is acquired under the terms of a Department of Defense or civilian agency contract, use, duplication or disclosure by the Government is subject to the restrictions set forth in 52.227-19-Commercial Computer Software-Restricted Rights of the Federal Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 of the DoD FAR Supplement and its successors.


11.Export Regulations. The Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in the United States and other countries. You agree to comply strictly with all such regulations and acknowledge that it is Your responsibility to obtain any and all licenses, approvals, and consents necessary to export, re-export, or import the Software. The Software may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. has embargoed goods; (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders, or (iii) to any entity on the "Denied Parties List" and other lists promulgated by various agencies of the United States Federal Government.


12.Irreparable Harm. You acknowledge that money damages may not be an adequate remedy for Your breach of this Agreement and that any such breach may leave No Magic without an adequate remedy at law. You therefore agree that, in addition to any other remedies available at law, in equity or under this Agreement, No Magic shall be entitled to obtain temporary, preliminary and permanent injunctive relief, without bond, from a court of competent jurisdiction to restrain any such breach.


13.You agree, upon written request by NO MAGIC which shall occur no more frequent then twice annually, to certify in writing that your use of the software is in compliance with the terms of this Agreement.


(a)For Commercial Users and Government Users not using the Special Security Related Government Version - Recordal, Storage and Tracking of Computer Address. YOU AGREE THAT NO MAGIC MAY RECORD, STORE, DISCLOSE AND USE IN ANY WAY INFORMATION RELATED TO THE INSTALLATION AND USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, THE IP / MAC ADDRESS OF ANY CPU ON WHICH THE SOFTWARE IS INSTALLED AND THE OPERATING SYSTEM, JAVA VERSION AND VENDOR THEREOF WITH WHICH THE SOFTWARE IS USED, FOR THE PURPOSE OF MONITORING COMPLIANCE WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, PREVENTING THE USE OF UNAUTHORIZED COPIES OF THE SOFTWARE OR USE OF THE SOFTWARE IN VIOLATION OF THIS AGREEMENT, AND TO ENFORCE ANY AND ALL OF NO MAGIC'S RIGHTS UNDER THIS AGREEMENT OR REGARDING THE SOFTWARE.


(b)For Government Users using the Special Security Related Government Version - A SPECIAL SECURITY RELATED GOVERNMENT VERSION THAT TURNS OFF MAGICDRAW'S "AUTO UPDATE" AND ALL OTHER RELATED COMMUNICATIONS BACK TO OUR SERVERS IS AVAILABLE FOR QUALIFIED GOVERNMENT CUSTOMERS UPON REQUEST. THIS VERSION WILL FULFILL CERTAIN SECURITY REQUIREMENTS FOR SUCH GOVERNMENT CUSTOMERS REQUIRING SECURE CERTIFICATION.


14.Governing Law; Dispute Resolution. The validity and interpretation of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas and the United States, without regard to conflict of law principles. Any disputes or claims under this Agreement or its breach shall be submitted to and resolved exclusively by binding arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. Arbitration shall be in Collin County, Texas. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, No Magic may sue in any federal or state court in Collin County, Texas or other court of competent jurisdiction for injunctive relief to restrain any breach of this Agreement.


15. General Conditions and Covenants. No decision, act, or inaction of No Magic shall be construed to be a waiver of any right or remedy. In the event any provision of this Agreement shall be deemed unenforceable, or void, or invalid, such provision shall be modified so as to make it valid and enforceable and as so modified the entire Agreement shall remain in full force and effect. This Agreement sets forth the entire understanding and agreement between the parties relative to the Software and its use and no written or oral representations of any kind whatsoever shall in any way modify or expand the terms of this Agreement. In the event of any conflict or inconsistency between the terms of this Agreement and any documentation, this Agreement shall preempt such documentation to the extent inconsistent.


Should you have any questions concerning this Agreement You may contact:


No Magic, Inc.

Legal Department

One Allen Center

700 Central Expressway South, Suite 110

Allen, Texas 75013 USA

Main: +1-214-291-9100

Fax: +1-214-291-9099


Software and Software Documentation (C) No Magic, Inc. 1998-2012. All rights reserved


ANNEX D2 : EULA FOR PAPYRUS FROM ECLIPSE FOUNDATION SOFTWARE


Eclipse Foundation Software User Agreement

February 1, 2011

Usage Of Content

THE ECLIPSE FOUNDATION MAKES AVAILABLE SOFTWARE, DOCUMENTATION, INFORMATION AND/OR OTHER MATERIALS FOR OPEN SOURCE PROJECTS (COLLECTIVELY "CONTENT"). USE OF THE CONTENT IS GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND/OR THE TERMS AND CONDITIONS OF LICENSE AGREEMENTS OR NOTICES INDICATED OR REFERENCED BELOW. BY USING THE CONTENT, YOU AGREE THAT YOUR USE OF THE CONTENT IS GOVERNED BY THIS AGREEMENT AND/OR THE TERMS AND CONDITIONS OF ANY APPLICABLE LICENSE AGREEMENTS OR NOTICES INDICATED OR REFERENCED BELOW. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF ANY APPLICABLE LICENSE AGREEMENTS OR NOTICES INDICATED OR REFERENCED BELOW, THEN YOU MAY NOT USE THE CONTENT.

Applicable Licenses

Unless otherwise indicated, all Content made available by the Eclipse Foundation is provided to you under the terms and conditions of the Eclipse Public License Version 1.0 ("EPL"). A copy of the EPL is provided with this Content and is also available at http://www.eclipse.org/legal/epl-v10.html. For purposes of the EPL, "Program" will mean the Content.

Content includes, but is not limited to, source code, object code, documentation and other files maintained in the Eclipse Foundation source code repository ("Repository") in software modules ("Modules") and made available as downloadable archives ("Downloads").

  • Content may be structured and packaged into modules to facilitate delivering, extending, and upgrading the Content. Typical modules may include plug-ins ("Plug-ins"), plug-in fragments ("Fragments"), and features ("Features").
  • Each Plug-in or Fragment may be packaged as a sub-directory or JAR (Java™ ARchive) in a directory named "plugins".
  • A Feature is a bundle of one or more Plug-ins and/or Fragments and associated material. Each Feature may be packaged as a sub-directory in a directory named "features". Within a Feature, files named "feature.xml" may contain a list of the names and version numbers of the Plug-ins and/or Fragments associated with that Feature.
  • Features may also include other Features ("Included Features"). Within a Feature, files named "feature.xml" may contain a list of the names and version numbers of Included Features.

The terms and conditions governing Plug-ins and Fragments should be contained in files named "about.html" ("Abouts"). The terms and conditions governing Features and Included Features should be contained in files named "license.html" ("Feature Licenses"). Abouts and Feature Licenses may be located in any directory of a Download or Module including, but not limited to the following locations:

  • The top-level (root) directory
  • Plug-in and Fragment directories
  • Inside Plug-ins and Fragments packaged as JARs
  • Sub-directories of the directory named "src" of certain Plug-ins
  • Feature directories

Note: if a Feature made available by the Eclipse Foundation is installed using the Provisioning Technology (as defined below), you must agree to a license ("Feature Update License") during the installation process. If the Feature contains Included Features, the Feature Update License should either provide you with the terms and conditions governing the Included Features or inform you where you can locate them. Feature Update Licenses may be found in the "license" property of files named "feature.properties" found within a Feature. Such Abouts, Feature Licenses, and Feature Update Licenses contain the terms and conditions (or references to such terms and conditions) that govern your use of the associated Content in that directory.

THE ABOUTS, FEATURE LICENSES, AND FEATURE UPDATE LICENSES MAY REFER TO THE EPL OR OTHER LICENSE AGREEMENTS, NOTICES OR TERMS AND CONDITIONS. SOME OF THESE OTHER LICENSE AGREEMENTS MAY INCLUDE (BUT ARE NOT LIMITED TO):

IT IS YOUR OBLIGATION TO READ AND ACCEPT ALL SUCH TERMS AND CONDITIONS PRIOR TO USE OF THE CONTENT. If no About, Feature License, or Feature Update License is provided, please contact the Eclipse Foundation to determine what terms and conditions govern that particular Content.

Use of Provisioning Technology

The Eclipse Foundation makes available provisioning software, examples of which include, but are not limited to, p2 and the Eclipse Update Manager ("Provisioning Technology") for the purpose of allowing users to install software, documentation, information and/or other materials (collectively "Installable Software"). This capability is provided with the intent of allowing such users to install, extend and update Eclipse-based products. Information about packaging Installable Software is available at http://eclipse.org/equinox/p2/repository_packaging.html ("Specification").

You may use Provisioning Technology to allow other parties to install Installable Software. You shall be responsible for enabling the applicable license agreements relating to the Installable Software to be presented to, and accepted by, the users of the Provisioning Technology in accordance with the Specification. By using Provisioning Technology in such a manner and making it available in accordance with the Specification, you further acknowledge your agreement to, and the acquisition of all necessary rights to permit the following:

  1. A series of actions may occur ("Provisioning Process") in which a user may execute the Provisioning Technology on a machine ("Target Machine") with the intent of installing, extending or updating the functionality of an Eclipse-based product.
  2. During the Provisioning Process, the Provisioning Technology may cause third party Installable Software or a portion thereof to be accessed and copied to the Target Machine.
  3. Pursuant to the Specification, you will provide to the user the terms and conditions that govern the use of the Installable Software ("Installable Software Agreement") and such Installable Software Agreement shall be accessed from the Target Machine in accordance with the Specification. Such Installable Software Agreement must inform the user of the terms and conditions that govern the Installable Software and must solicit acceptance by the end user in the manner prescribed in such Installable Software Agreement. Upon such indication of agreement by the user, the provisioning Technology will complete installation of the Installable Software.

Cryptography

Content may contain encryption software. The country in which you are currently may have restrictions on the import, possession, and use, and/or re-export to another country, of encryption software. BEFORE using any encryption software, please check the country's laws, regulations and policies concerning the import, possession, or use, and re-export of encryption software, to see if this is permitted.

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