Non-Production License for Rocket Data Virtualization Version 2.1 for Use on IBM z13 and z13s Mainframe Computers
1. LICENSE; SOFTWARE FOR NON-PRODUCTION USES
1.1 Grant. “Non-Production Software” means Rocket® Data Virtualization Version 2.1 software that provides unrestricted development and test capabilities for developers to use on IBM® z13™ and z13s™ mainframe computers only, as well as any related documentation, provided to you (“Licensee”). Rocket Software Inc. (“Rocket”) grants to Licensee, subject to the terms of this Agreement, a royalty-free, non-transferable, non-exclusive right to use Non-Production Software for development and testing purposes only (“License”). Rocket may provide Licensee access to the Non-Production Software or its functionality for installation at Licensee’s site, or on a hosted software-as-a-service (SaaS) basis, at Rocket’s discretion. Rocket has no obligation to provide additional versions of Non-Production Software or to make any changes or improvements to Non-Production Software. Rocket has no obligation to provide maintenance or support for Non-Production Software. Licensee grants Rocket a royalty-free, worldwide, perpetual license to use and incorporate into Rocket products any suggestion, idea, enhancement, feedback, recommendation or other information Licensee provides relating to Non-Production Software.
1.2 Restrictions. Licensee will not: a) permit any third party to access or use Non-Production Software, except for Licensee’s employees testing and evaluating Non-Production Software according to the Agreement; b) transfer or use Non-Production Software to or in a country other than that to which Rocket first provides it; c) reverse engineer, decompile or disassemble Non-Production Software; d) develop or market any competitive or alternative product; e) develop or market any utility that is intended to enable conversion from the Non-Production Software to a competitive or alternative product; f) use Non-Production Software in production; or, g) infringe or misappropriate Rocket’s or its licensors’ Intellectual Property.
1.3 Use. Licensee will define and perform tests to determine suitability of Non-Production Software for use in Licensee's internal business operations and environment. Licensee will use reasonable efforts to provide written test and evaluation information to Rocket relating to the Non-Production Software, including reporting test results and deficiency information to Rocket in writing, recommending modifications, improvements, corrections, suggested alterations and additions, and consulting with Rocket in reviewing and analyzing representative data. Licensee will not include Licensee’s Confidential Information in test and evaluation information it provides to Rocket.
1.4. Data. Licensee may use generic, generally available data or Licensee proprietary information and data (“Licensee Data”) as an example for testing purposes, however, Licensee should use generic data for SaaS evaluation and testing. Licensee Data that Licensee uses for SaaS evaluation and testing will not be encrypted or treated as Confidential Information. Licensee’s use of Licensee Data is at its own risk and Rocket is not responsible or liable for Licensee Data. Licensee grants Rocket a non-exclusive, nontransferable license to copy, store, transmit and display Licensee Data as necessary to provide SaaS evaluation testing to Licensee on a hosted basis. Licensee represents and warrants that Licensee Data will not violate third party rights or applicable law. Rocket is not responsible or liable for storing or backing up Licensee Data; transmission of Licensee Data, Licensee’s failure to back up or store Licensee Data, or deletion, correction, destruction, damage to or loss of Licensee Data, other than to maintain commercially reasonable safeguards for Non-Production Software provided on a hosted basis. Rocket may, in its sole discretion, remove, discard or store Licensee Data, or delete hosted Licensee Data and terminate the License, without notice.
2. INTELLECTUAL PROPERTY OWNERSHIP
Rocket owns and retains all right, title and interest to and in all intellectual property in Non-Production Software, including without limitation, inventions, patents, copyrights, trademarks, service marks, trade names, trade secrets, know-how, moral rights, licenses, developments, research data, designs, layout, models, formulae, documents, drawings, plans, specifications and other Rocket information, proprietary materials and all derivative works, and any other intangible proprietary or property rights therein, whether or not patentable or otherwise subject to legally enforceable restrictions or protections against unauthorized third party use, or whether arising by statute or common law. To the extent that any right, title or interest in or to any Rocket’s intellectual property in Non-Production Software may not automatically vest in Rocket by operation of law, Licensee irrevocably transfers, assigns and conveys all right, title, and interest therein to Rocket. At Rocket’s request and expense Licensee will promptly take any action and execute any documents necessary to vest full title in Rocket or its licensor.
3. CONFIDENTIALITY
3.1 Confidential Information. “Confidential Information” means any material, data, or information, in any form or media, that is proprietary or confidential to a party and is marked as confidential, or not marked but by its nature or treatment by its owner should reasonably be considered to be confidential. Confidential Information includes without limitation the Agreement and Non-Production Software; Rocket’s intellectual property, specifications, manuals, product roadmaps, and results of benchmark tests. Confidential Information does not include information that is (i) publicly available without breach of the Agreement; (ii) reasonably shown to disclosing party’s satisfaction to have been known by receiving party prior to disclosure or independently developed by receiving party subsequent to disclosure without breach of these terms; or (iii) obtained by receiving party from a third party without confidentiality obligation. Non-Production Software is not deemed to be placed in the public domain by Rocket. Receiving party will promptly notify disclosing party if it is compelled by a court or legal process to disclose Confidential Information and will take any reasonable action requested by disclosing party to maintain the confidentiality of the Confidential Information.
3.2 Non-disclosure. Licensee will prevent disclosure to Rocket of any personally identifiable information (PII) regarding Licensee’s employees or customers. Licensee is solely responsible for complying with any requirements regarding its PII. Receiving party will use disclosing party's Confidential Information solely to perform its obligations under the Agreement. Receiving party will take commercially reasonable steps to safeguard disclosing party's Confidential Information, including no less than the steps taken to protect its own Confidential Information. Receiving party must not disclose disclosing party's Confidential Information except to its employees bound by written confidentiality obligations no less restrictive than these terms. Receiving party must promptly notify disclosing party in writing of unauthorized use or disclosure of Confidential Information. Receiving party, at its expense, must take all reasonable action to recover disclosing party’s Confidential Information and prevent further unauthorized use or disclosure, including action for seizure and injunctive relief. If receiving party fails to do so in a timely manner, disclosing party may take reasonable action to do so at receiving party's expense, and receiving party must reasonably cooperate. These provisions will survive with regard to disclosing party’s Confidential Information as long as it is in the possession of receiving party.
4. WARRANTY DISCLAIMER
LICENSEE ACKNOWLEDGES THAT NON-PRODUCTION SOFTWARE IS PROVIDED SOLELY FOR EVALUATION USE AND TESTING, AND THAT NON-PRODUCTION SOFTWARE MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR WILL NOT BE CORRECTED BY ROCKET. NOTWITHSTANDING ANY OTHER PROVISION, NON-PRODUCTION SOFTWARE IS PROVIDED "AS IS", “AS-AVAILABLE”, WITHOUT WARRANTY, REPRESENTATION OR INDEMNITY OF ANY KIND, EXPRESS, IMPLIED, ORAL, WRITTEN, STATUTORY, OR OTHERWISE, INCLUDING WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, OR NON-INFRINGEMENT; OR FOR THE USE, SUFFICIENCY, RELIABILITY, TIMELINESS, QUALITY, SECURITY, SUITABILITY, TRUTH, AVAILABILITY, COMPLETENESS OR ACCURACY OF NON-PRODUCTION SOFTWARE. ROCKET IS NOT LIABLE FOR LOSS OF DATA OR ANY DAMAGES, DIRECT OR INDIRECT, RESULTING FROM USE OR ATTEMPTED USE OF NON-PRODUCTION SOFTWARE, THROUGH AND AFTER THE EVALUATION TESTING PERIOD. ROCKET DISCLAIMS LIABILITY FOR ANY PARTY’S ACT OR OMISSION IN USE OF OR RELIANCE UPON NON-PRODUCTION SOFTWARE, OR THAT THE QUALITY OF ANY INFORMATION, DATA, RESULTS OR MATERIAL OBTAINED THROUGH NON-PRODUCTION SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS; ERRORS OR DEFECTS WILL BE CORRECTED; OR THE SERVICE OR SERVER USED TO PROVIDE HOSTED SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HOSTED SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ROCKET IS NOT RESPONSIBLE FOR RESULTING DELAYS, DELIVERY FAILURE, OR DAMAGES. LICENSEE HAS SOLE RESPONSIBILITY FOR FULFILLING ANY REQUIREMENTS OR ACCOMPLISHING ANY OBJECTIVES FOR WHICH LICENSEE USES NON-PRODUCTION SOFTWARE.
5. LIMITATION OF LIABILITY
5.1 ROCKET IS NOT LIABLE FOR ANY (i) CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, (ii) INTERRUPTION OF BUSINESS OR OPERATIONS, COST OF COVER, GOODWILL, OR LOST DATA, PROFITS OR REVENUE, OR FAILURE OF A REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE.
5.2 EXCEPT FOR A CLAIM FOR DEATH OR BODILY INJURY, TANGIBLE PROPERTY DAMAGE, WILLFUL MISCONDUCT OR FRAUD, ROCKET IS NOT LIABLE FOR ANY DAMAGES THAT EXCEED THE AMOUNT LICENSEE PAID FOR THE NON-PRODUCTION SOFTWARE THAT GAVE RISE TO THE CLAIM.
5.3 THE LIMITATIONS IN SECTIONS 4 AND 5 APPLY TO ANY DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABLITY, WHETHER FOR BREACH OF CONTRACT, TORT, MISREPRESENTATION, NEGLIGENCE, USE OR PERFORMANCE OF NON-PRODUCTION SOFTWARE, OR OTHERWISE, AND REGARDLESS OF WHETHER DAMAGES WERE FORESEEABLE OR UNFORSEEABLE. ROCKET IS NOT LIABLE FOR ANY CLAIM BROUGHT MORE THAN 12 MONTHS AFTER LICENSEE BECAME AWARE OF THE ISSUE GIVING RISE TO THE CLAIM. ROCKET’S FAILURE TO EXERCISE A RIGHT OR REMEDY IS NOT A WAIVER. SECTIONS 4 AND 5 DESCRIBE ROCKET’S SOLE WARRANTY AND LIABILITY FOR NON-PRODUCTION SOFTWARE.
6. TERM AND TERMINATION
This Agreement is effective on the Effective Date specified above, and continues until the first to occur: (i) Licensee’s purchase of Rocket’s commercial release of the Non-Production Software; or (ii) the date of Rocket’s written termination notice. Upon termination Licensee will immediately un-install, return or destroy Non-Production Software and, upon Rocket’s request, provide written certification of such destruction.
7. COMPLIANCE WITH LAWS; EXPORT.
Licensee must comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Export Administration and Treasury Department's Office of Foreign Assets Control regulations, and other anti-boycott and import regulations. Licensee agrees: (i) that the export, re-export, transfer, re-transfer, sale, supply, access to, or use of Non-Production Software to or in a country other than the country in which the Non-Production Software was first provided to Licensee, or to, by, or for a different end user or end use, may require a U.S. or other government license or other authorization; and (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of Non-Production Software to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other applicable law (collectively, “Prohibited Use“). Licensee is responsible for screening for Prohibited Use and obtaining any required licenses or other authorizations and shall indemnify Rocket for any violation by Licensee of any applicable export controls and/or economic sanctions laws and regulations. Rocket may terminate the Agreement and License immediately if Rocket determines, in its sole discretion, that Licensee has breached, intends to breach, or insists upon breaching any of the provisions in this clause.
8. U.S. GOVERNMENT USERS
Non-Production Software includes “Commercial Computer Software” and “Commercial Computer Software Documentation.” In accordance with Section 12.212 of the Federal Acquisition Regulations (FAR) and Sections 227.7202-1 through 227.7202-4 of the Defense Federal Acquisition Regulation Supplement (DFARS), any use, duplication or disclosure of Non-Production Software by the U.S. Government or any of its agencies will be governed by and subject to all of the terms, conditions, restrictions, and limitations of the Agreement. Use of Non-Production Software is agreement by the U.S. Government that Non-Production Software includes "commercial computer software" and "commercial computer software documentation" and is acceptance of the rights and restrictions in the Agreement. If for any reason Non-Production Software is not considered commercial or the Agreement terms are otherwise deemed not to apply, the Non-Production Software will be deemed to be provided with “Restricted Rights” as defined in FAR 52.227-14(a) and FAR 52.227-14(g)(4) (Alt III), or DFARS 252.227-7014(a)(15) and DFARS 252.227-7014(b)(3), as applicable.
9. MISCELLANEOUS.
9.1 Integration. The Agreement sets forth the entire agreement of the parties and supersedes all prior oral and written agreements and understandings with respect to its subject matter. No waiver or modification of any provision of the Agreement is binding unless in writing signed by both parties. If a provision of the Agreement is invalid, illegal or unenforceable, it will not affect any other provision of the Agreement. The Agreement may not be assigned by Licensee.
9.2 Notice. Notice or approval must be in writing signed by a party’s authorized representative, sent to the address provided above or otherwise specified in writing by a party for notice. Notice must be sent by mail or overnight courier, with return receipt, and is effective 1 business day after being sent by overnight courier or 3 business days after being sent by mail.
9.3 Law. The laws of the Commonwealth of Massachusetts, USA, govern the Agreement, excluding conflict of law principles which would require application of the law of any other jurisdiction. Each party waives the right to jury trial for any legal action, in law or equity. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act, as adopted, do not apply.