THE FOLLOWING DEFINITIONS AND CLARIFICATIONS APPLY TO ALL SOFTWARE LICENSES GRANTED BY ROCKET SOFTWARE OR ONE OF ITS AFFILIATES:
DEFINITIONS
“Perpetual License” is a license whose term is perpetual, meaning that the duration is indefinite for so long as this Agreement is in force. Except as otherwise stated and until such time that Customer advises Rocket that Customer no longer utilizes the Product(s), and provided that Customer continues to pay applicable Maintenance fees, unless cancelled in accordance with this Agreement, Rocket shall make license keys or passwords available to Customer for so long as this Agreement remains in force. If a license key expires, Rocket will make available a renewal license key approximately one (1) month before the expiration of a current license key. It is Customer’s responsibility to update Rocket with any changes to the designated contact for receipt of license keys. After the first Maintenance Term, and provided all fees due under this Agreement, including any applicable License Upgrade Fees, are paid in full, Customer may elect to cancel Maintenance and retain the right to use the Product(s) in accordance with the terms and conditions of the Software License and Services Agreement. If Customer elects to cancel Maintenance, Customer shall notify Rocket in writing at least ninety (90) days prior to the renewal date, and Customer (i) shall not be entitled to a refund of any fees which are due and payable under this Agreement or which have been paid, and (ii) shall not be entitled to receive any rights provided for in the Agreement related to Maintenance including Customer Support Desk, error corrections, enhancements, improvements and updates. Should Customer fail to provide the aforementioned notice, the annual Maintenance Fee shall be due and payable by Customer to Rocket. Customer may elect to reinstate Maintenance by paying all Maintenance fees that would have been due had Customer not canceled Maintenance, in addition to the Maintenance Fee for the then-current Maintenance period, plus a reinstatement fee.
“Server” is a discrete instance of a networked computer running a specific operating system at the location set forth on a Product Schedule or an Order Form on which Customer has installed and/ or runs the Product(s). A Server may be a physical machine or a virtual machine. Except as otherwise expressly provided, each machine, whether physical or virtual, requires its own Server license, regardless of the machine’s function, such function which may include, but shall not be limited to, production, pre-production, test, quality assurance, development, failover, backup or disaster recovery, high or continuous availability, etc. If Customer permanently uninstalls the Product(s) from a given machine, Customer may reassign that Server license to another machine at the location(s) on a Product Schedule or Order Form, but no more frequently than once every thirty (30) days.
“Subscription License” is a license whose term is set for a specific period of time on a Product Schedule or Order Form. Once the term expires, the Customer has no further rights to use the Product(s). Subscription Licenses include Maintenance and Support as part of the Subscription License Fee.
“Use” or “utilization” of a Product shall include but not be limited to i) downloading, installing, or copying—including by replication—any portion of the Product—including updates, patches, fixes, etc.—onto any computer, storage media, or electronic device ii) creating, processing, or modifying any form of code, data, information, or workload with the Product, iii) accessing the Product in any way even if indirectly or remotely through another application, interface, portal, or any other technology, iv) obtaining from Rocket or applying license keys for the Product, v) accessing Rocket Maintenance related to the Product, or vi) managing or maintaining the Product on identified equipment.
“UOM” stands for Unit of Measure and is the basis for how certain mainframe software is licensed. A UOM may be by named user, concurrent user, MIPS (Millions of Instructions per Second), MSU (Millions of Service Units per Hour) or other such restrictions on the use of licensed software.
MAINFRAME PRODUCTS CAPACITY LICENSING AND VERIFICATION OF CAPACITY:
IF CUSTOMER LICENSES MAINFRAME SOFTWARE FOR WHICH THE UNIT OF MEASURE IS MIPS/ MSU/ GROUP/ SITE TOTAL CAPACITY LICENSES, THEN THE FOLLOWING CLARIFICATION APPLIES:
Customer may utilize the Product(s) on a one or more Central Processor Complex (“CPC”, sometimes referred to as a “CPU”) set forth on the Product Schedule or Order Form at the location specified on an Order Form provided that the combined total capacity of the CPC(s)—as rated by Gartner—where the Product(s) are installed, may be run, and/ or that benefit from the operation of the Product(s) must never exceed the mainframe capacity license entitlement set forth on an Order Form under UOM at any time, for any length of time, and/ or for any reason.
IF CUSTOMER LICENSES MAINFRAME SOFTWARE ON A HARD-CAP SUB-CAPACITY LPAR BASIS, THEN THE FOLLOWING CLARIFICATION APPLIES:
Customer may install the Product(s) on one or more mainframe logical partitions (“LPAR”), on one or more Central Processor Complex(es) (“CPC”, sometimes referred to as a “CPU”) as specified on the Order Form at the location on the Order Form provided that the combined capacity of all LPARs on which the Licensed Product(s) are installed, are run, and/ or that benefit from the operation of the Products must never exceed the mainframe capacity license entitlement set forth on an Order Form under UOM at any time, for any length of time, and/ or for any reason. Peak capacity of the LPAR(s) shall be measured on a synchronous basis via the Resource Management Facility (“RMF”) Partition Data Reports—which shall be based on the shortest interval possible, but in no case longer than fifteen (15) minutes. For the avoidance of doubt, peak capacity utilization is not measured on a rolling-average basis.
IF CUSTOMER LICENSES MAINFRAME SOFTWARE ON A SUB-CAPACITY LPAR BASIS THEN THE FOLLOWING CLARIFICATION APPLIES:
Customer may install the Product(s) on one or more mainframe logical partitions (“LPAR”) on one or more Computer Processing Complex (“CPC”, sometimes referred to as a “CPU”) as set forth on the Order Form at the location set forth on the Order Form provided that the combined capacity of all LPARs on which the Product(s) are installed, are run, and/ or that benefit from the operation of the Products must never exceed the mainframe capacity license entitlement set forth on an Order Form on a four-hour-rolling-average (“4HRA”) basis at any time, for any length of time, and/ or for any reason. Peak capacity of the LPAR(s) shall be measured on a synchronous basis via the Resource Management Facility (“RMF”) Partition Data Reports.
IF CUSTOMER LICENSES MAINFRAME SOFTWARE ON EITHER A SOFT-CAP OR A 4HRA BASIS, OR ON A GROUP CAP OR ON A SUB-CAPACITY LPAR BASIS, THEN THE FOLLOWING CLARIFICATION APPLIES:
Customer may install the Product(s) on one or more mainframe logical partitions (“LPAR”) on one or more Central Processor Complex(es) (“CPC”, sometimes referred to as a “CPU”) as specified on the Order Form at the location on the Order Form provided that the combined capacity of all LPARs on which the Product(s) are installed, are run, and/ or that benefit from the operation of the Products must never exceed the mainframe capacity license entitlement set forth on an Order Form under “Unit of Measure”, on a four-hour-rolling-average (“4HRA”) basis, at any time, for any length of time, and/or for any reason. Peak capacity of the LPAR(s) shall be measured on an asynchronous basis via the Sub-Capacity Reporting Tool (“SCRT”) Reports, utilizing the DETAIL LPAR DATA SECTION (N5) or equivalent.
THE FOLLOWING CAPACITY VERIFICATION PROVISIONS APPLY TO ALL MAINFRAME LICENSES:
At Rocket’s request, Customer shall provide Rocket with data to verify peak capacity utilization including but not limited to the following (collectively, the “Capacity Utilization Reporting”):
- model number, capacity setting, and serial number of each CPC on which the Product(s) is installed, may be run, and/ or that benefit from the use of the Product(s)—including any CPCs in a Sysplex, configured for capacity on demand, and/ or available for Capacity Back-up (“CBU”) and business continuity.
- the name of every LPAR where the Product(s) is installed, may be run, and/ or that benefit from the operation of the Product(s)
- RMF reports—or equivalent if IBM changes the mainframe reporting tools in the future—for the prior twelve (12) months for each CPC run with the following parameters:
- Interval values set to no longer than fifteen (15) minutes
- Based upon SMF record type 70
- RMF report sections: RMF Summary Report, CPC Activity, Partition Data Report, LPAR Cluster Report, and Group Capacity Report
- Output file format: Please output the RMF report(s) as Text from the z/OS system directly into a .txt file. It is necessary to retain the ASA Characters in the report(s). Please do not copy the output/ report(s) into any other file format prior to returning the information to Rocket.
- the prior twelve (12) months of Sub-Capacity Reporting Tool (“SCRT”) Multiplexing Reports—or equivalent if IBM changes the mainframe reporting tools in the future—with the following parameters:
- The SCRT report must be prepared by:
- Specifying the Country Multiplex Pricing SPECIAL control statement to request that SCRT creates the SCRT Multiplex report.
- In addition, the “Generate Detailed Data” parameter must be specified in order to generate the W3 “Detailed Interval Data section” of the SCRT Multiplex report.
- The SCRT must contain all relevant sections, including but not limited to B5, G5, H4, H6, N5, P5, U5, and W3.
- The SCRT report must be prepared by:
If needed, the following formula shall be used to convert MSU values from the Capacity Utilization Reporting into MIPS values:
[Gartner’s rating of the total MIPS capacity of the subject CPC] ÷ [IBM’s rating of the total MSU capacity of the subject CPC] × [reported MSU capacity or utilization] = [reported MIPS capacity or utilization]
Should Customer i) exceed or intend to exceed the mainframe capacity license entitlement specified on an Order Form or Product Schedule and/ or ii) convert or intend to convert the mainframe capacity license type specified on an Order Form or Product Schedule, Customer shall provide Rocket with prior written notice of such excess/ conversion and Customer shall pay a Rocket’s then-current list price for the additional capacity (the “License Upgrade Fee”). For purposes of this paragraph only, “conversion” refers to Customer’s change of capacity licensing metric, e.g., from a license measured on the basis of CPC total capacity to a license measured on the basis of LPAR capacity utilization. The License Upgrade Fee in a license conversion transaction, but not in a license upgrade transaction, is subject to a minimum charge of ten percent (10%) of Rocket’s then-current list price (with no discounts applied) for the previous entitlement. The License Upgrade Fee shall be payable at the time of upgrade/ conversion for perpetual licenses or prorated from the effective date of upgrade/ conversion to the end of the Term for subscription licenses. Should Customer upgrade/ convert its entitlement on a perpetual license, the additional Maintenance fee (“Additional Annual Maintenance Fee”) shall be calculated as twenty percent (20%) of the License Upgrade Fee. The Additional Annual Maintenance Fee shall be payable at the time of upgrade/ conversion (prorated from the effective date of the upgrade/ conversion to the end of the applicable annual Maintenance period) and the sum of the Additional Annual Maintenance Fee and the original Annual Maintenance Fee shall be due for each annual Maintenance period thereafter.
FOR CUSTOMERS WHO REQUIRE CAPACITY ON DEMAND LICENSE RIGHTS, THE FOLLOWING PROVISION SHALL APPLY:
If Customer requires additional capacity on demand (“CoD”) for the Product(s) for a period of ninety (90) days or less per annum, Customer may license said additional capacity at a rate to be quoted by Rocket for each individual Product per day of usage at the higher capacity (the “CoD Fee”). This CoD Fee covers both the incremental license and Maintenance fees per individual Product per day. Rocket shall provide Customer with a more flexible license key that allows Customer to vary the capacity setting of its equipment without the need to apply new passwords. Within ten (10) business days after the end of each calendar month during the Term, Customer shall proactively notify Rocket of the Capacity Utilization Reporting for the prior month; failure to notify Rocket of the Capacity Utilization Reporting for a given month shall result in an automatic forfeiture of this capacity on demand option for the subsequent six (6) month period. If the Capacity Utilization Reporting identifies usage in excess of the capacity limits set forth on an Order Form, Customer shall pay Rocket for the excess capacity.
BUSINESS CONTINUITY (“BC”) LICENSING:
FOR ALL BUSINESS CONTINUITY LICENSES, THE FOLLOWING DEFINITION APPLIES
A Disaster Event is defined as both i) unplanned by Customer and ii) outside of Customer’s control—e.g., act of God, act of war, riot, epidemic, fire, natural disaster, act of government, strike or lockout, or a failure of communication line or power supply. Any failure resulting from operation of the designated equipment does not constitute a Disaster Event.
UNLESS CUSTOMER IS PURCHASING A PAID BUSINESS CONTINUITY LICENSE, THE FOLLOWING TERMS SHALL APPLY:
Customer may make a reasonable number of non-executable backup copies of the Product(s) to a storage location(s) from which said backup copies could never be run, (e.g., a tape backup). A backup copy may permanently replace the original copy of the Product(s) provided that such original copy is permanently unusable due to damage, destruction, or a Disaster Event; in such a case, use of a backup copy would be governed by the same terms and conditions set forth in the Agreement that apply to the Product(s). For the duration of this Agreement, Customer is also authorized to utilize the Product(s) on disaster recovery equipment at a disaster recovery location at such time that the Customer’s original equipment becomes temporarily inoperable due to a Disaster Event and until operable status is restored to the original equipment. Customer may only install—including but not limited to via a manual process, an automated copying routine, replication, or mirroring—the Product(s) on the disaster recovery equipment after a Disaster Event has occurred that renders the original equipment inoperable, and must completely de-install the Product(s) from the disaster recovery equipment once the original equipment is restored to operation. Customer may not use the Product(s) for any disaster recovery testing. Upon request from Customer, Rocket shall provide temporary license keys for the Product(s) to run on the disaster recovery equipment only at the time of a Disaster Event. All rights and limitations apply to use of the Product(s) during disaster recovery processing.
IF CUSTOMER IS LICENSING A BUSINESS CONTINUITY LEVEL 1 LICENSE, THE FOLLOWING TERMS SHALL APPLY:
Level 1: Customer is authorized to install the Business Continuity Product(s) (“BC Products”) on the equipment (“BC Equipment”) and at the location set forth on an Order Form or Product Schedule, subject to the license type and quantity limitations specified above—which must align with the license capacity intended to be used during business continuity testing. Rocket shall provide a one-year license key for the BC Product(s) to run on the BC Equipment as of the Effective Date and provide annual renewal license keys for the duration of Customer’s Agreement. Customer may utilize the BC Product(s) for production purposes at such time that the original equipment becomes temporarily inoperable due to a Disaster Event and until operable status is restored to the original equipment. Customer may replicate data—inclusive of the Product(s)—from the original equipment to the BC Equipment. Customer may utilize the BC Product(s) for a total of thirty (30) days per annum in order to conduct business continuity testing of the BC Equipment, provided that i) Customer provides Rocket with prior written notice of such testing, ii) no production workload(s) is run on the BC Equipment during said testing, and iii) Customer supplies Rocket with annual Capacity Utilization Reporting—or such equivalent usage reporting for non-mainframe products—for the BC Equipment; Customer expressly agrees that it shall neither apply nor benefit from the functionality of the BC Product(s) under such testing, except in the case of a Disaster Event. All testing beyond business continuity testing requires a separate license to be purchased from Rocket. The cost of license entitlement increases for the BC Product(s) shall be calculated in the same manner as the corresponding Product(s), but with applicable Level 1 discounts.
IF CUSTOMER IS LICENSING A BUSINESS CONTINUITY LEVEL 2 LICENSE, THE FOLLOWING TERMS SHALL APPLY:
Level 2: Customer is authorized to install the BC Product(s) on the BC Equipment at the location set forth on a Product Schedule or Order Form, subject to the license type and quantity limitations specified above—which must align with the license capacity intended to be used during business continuity testing. Rocket shall provide license keys for the BC Product(s). Customer may utilize the BC Product(s) for production purposes at such time that Customer’s original equipment becomes temporarily inoperable for any reason and until operable status is restored to the original equipment. Not more frequently than every (thirty) 30 days, Customer may swap the production workload(s) between the original equipment and BC Equipment provided that i) Customer provides Rocket with prior written notice and ii) there is no overlapping period where production workload(s) is run on both machines simultaneously. Customer may replicate data—inclusive of the Product(s)—from the original equipment to the BC Equipment at any frequency desired. Customer may utilize the BC Product(s) without time limitations in order to conduct business continuity testing of the BC Equipment, provided that Customer provides Rocket with annual Capacity Utilization Reporting—or such equivalent usage reporting for non-mainframe products—for the BC Equipment. All testing beyond business continuity testing requires a separate license to be purchased from Rocket. The cost of license entitlement increases for the BC Product(s) shall be calculated in the same manner as the corresponding Product(s), but with applicable Level 2 discounts.
ADDITIONAL TERMS:
IF CUSTOMER IS LICENSING A FIELD DEVELOPED INTERFACE WITHOUT PURCHASING INSTALLATION SERVICES, THE FOLLOWING TERMS SHALL APPLY:
The Field Developed Interface(s) (“FDI”) licensed in this Agreement are provided “as is” and the terms of the Warranty and Maintenance Services sections of the Agreement do not apply. Subject to the payment of the FDI Support Fee, which is the annual fee for support of the FDI, Rocket shall provide support services for the FDI(s). FDI(s) may or may not become Generally Available Rocket product components. Rocket shall own all proprietary and intellectual property rights in all FDI(s).
IF CUSTOMER IS LICENSING A MOBIUS PRODUCT, THE FOLLOWING TERMS SHALL APPLY:
Certain Product(s) include, among other copyrighted intellectual property, proprietary file formats—e.g., the Document Archive File (“DAF”) format included with Rocket’s content management software. Customer may only access data/information/files stored in these proprietary formats via a valid license for the Product(s) itself. Accessing data/information/files stored in these proprietary formats via any other method, or allowing another party to do so, is strictly prohibited. For avoidance of doubt, Customer may only convert data stored in a Rocket proprietary format using the Product(s) itself. Customer shall have no limit of liability under this Agreement related to violating this restriction.
IF CUSTOMER IS LICENSING A ROCKET MULTI-VALUE PRODUCT, THE FOLLOWING TERMS SHALL APPLY:
Customer agrees to the program process and procedures specified in the MV Handbook which will be provided by Rocket to Customer.
IF CUSTOMER IS PURCHASING AN EXPANDED USAGE RIGHT FOR DIVESTITURE SUPPORT, THE FOLLOWING TERMS SHALL APPLY:
Customer may use the Product(s) on the equipment and at the location(s) set forth on an Order Form for the benefit of an identified divested business(es) during a “Divestiture Support Period” listed on an Order Form. Customer may allow employees from the acquirer to access the Product(s) running on the equipment at Customer’s location(s), but only during the Divestiture Support Period. Customer may not allow, however, an acquirer’s third parties—e.g., service providers, customers, agents, etc.—to access the Product(s).
The expanded usage rights granted under this Order Form are subject to the following conditions: i) Customer assumes full and sole responsibility for acquirer’s compliance with the Agreement and these terms, ii) Customer has entered into a confidentiality agreement with the acquirer that is at least as restrictive as the protections in the Agreement, iii) all other restrictions in the Agreement and associated Product Schedules or Order Forms—including but not limited to the licensed quantities/ capacities—are unchanged by this expanded right, iv) there is no change to Rocket’s support and maintenance obligations or Customer’s support and maintenance benefits, and v) personnel associated with the divested business(es) and/ or the acquirer may only submit support and maintenance requests to Rocket via Customer’s employees and only during the Divestiture Support Period.