END USER PRODUCT LICENSE AGREEMENT ("Agreement")
IMPORTANT: CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE INSTALLING OR USING THE PRODUCT(S) AND DOCUMENTATION ACCOMPANYING THIS AGREEMENT. BY CLICKING ON THE 'ACCEPT' OR 'YES' BUTTON, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACKNOWLEDGING YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). DATADIRECT TECHNOLOGIES, AN OPERATING COMPANY OF PROGRESS SOFTWARE CORPORATION (HEREINAFTER "DATADIRECT") IS ONLY WILLING TO PROVIDE THE PRODUCT(S) AND DOCUMENTATION TO YOU UNDER THESE TERMS AND CONDITIONS. YOUR ACT OF CLICKING ON THE 'ACCEPT' OR 'YES' BUTTON AND/OR ANY USE BY YOU OF THE PRODUCT(S) AND/OR DOCUMENTATION WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE 'DO NOT ACCEPT' OR 'NO' BUTTON, DO NOT PROCEED WITH THE INSTALLATION OF THE PRODUCT(S), AND PROMPTLY RETURN THE PRODUCT(S) AND DOCUMENTATION TO DATADIRECT OR THE DISTRIBUTOR OR SUPPLIER FROM WHICH IT WAS ACQUIRED (IF APPLICABLE) FOR A FULL REFUND. THE TERM "PROMPTLY" AS USED HEREIN SHALL MEAN NO LATER THAN SIXTY (60) DAYS FOLLOWING THE DELIVERY OF THE PRODUCT(S) AND DOCUMENTATION TO YOU.
1. Grant and Scope of License.
1.1 Subject to the terms and conditions contained herein, DataDirect grants to you ("User") a non-exclusive, non-transferable, limited license to use the computer program(s) (individually referred to herein as "Product" or collectively as "Products") for which valid license keys have been issued by DataDirect or its licensors or expressly identified in an order letter or document provided by DataDirect or its licensors (an "Order Letter") and related manuals in written or electronic form ("Documentation"). User's use of the Products shall be limited to internal use and all such use shall be in accordance with the provisions and limitations set forth in Exhibit A to this Agreement and the Order Letter. If User obtained a Product in conjunction with a software application provided by a third party, the Product may only be used with or as part of such software application. The Products may contain programs that perform automated collection of system data and transmit said data to equipment owned or under the control of DataDirect in order to verify that (i) User is entitled to use Product, and/or (ii) User has not exceeded the license keys issued by DataDirect (the "Runtime License Checker") and in the event that the Runtime License Checker determines that User has exceeded its license or is not entitled to use the Product, the Products may cease to operate.
1.2 User may not transfer, sell, assign or otherwise convey this Agreement or the Products, by operation of law or otherwise, to any other party. User may not sell, rent, license, or grant sublicenses, leases, or other rights in the Products to others or otherwise allow the Products to be accessed by another party. User shall have no right to use the Products to provide time sharing services or act as or operate a service bureau or provide subscription or hosting services for others, nor to use the Products in any software application that is made available on a time sharing, service bureau, subscription or hosting basis. User may not use the Products to develop, test, support or market competitive products designed for commercial distribution. This Agreement automatically terminates if User novates, assigns, sells rents, licenses, grants, sublicenses, leases or otherwise transfers possession of any copy of the Products or Product Updates to another party or purports to do the same.
1.3 For purposes of this Agreement a "Product Update" shall mean any update, patch, version and/or new release of or to the Product that DataDirect furnishes generally to its customers who are on support in accordance with DataDirect's then current support policies and fee requirements. A Product Update replaces part or all of a Product or Product Update previously licensed to User and shall terminate such previously licensed Product or Product Update to the extent replaced by the Product Update. Product Updates shall be subject to the terms and conditions of the license agreement accompanying the Product Update.
1.4 User agrees to pay the applicable end user license fees, as well as any applicable transportation charges and any value-added taxes or other applicable taxes, tariffs or withholding taxes which the relevant authorities require to pay, within thirty (30) days of date of invoice.
1.5 The term of this Agreement and User's license hereunder shall be perpetual (unless otherwise specified), subject to termination in accordance with the provisions of Section 2.2 below. The License Model (as defined in Exhibit A) shall be in accordance with the terms of the Order Letter or the license key issued for the product.
2. DataDirect's Rights.
2.1 The Products are proprietary products of DataDirect or its licensors (if any), and are protected by intellectual property law. By virtue of this Agreement, User acquires only the non-exclusive right to use the Products and does not acquire any rights of ownership or other right in the Products, Documentation or the media upon which they are embodied. DataDirect or its licensors (if any) shall at all times retain all right, title, and interest in the Products, Documentation and media. Except as otherwise expressly provided for in this Agreement, User acquires no rights of any kind in or to any trade name, logo, or trademark of DataDirect or DataDirect's affiliated companies or licensors, or any product designation under which the Products were or are marketed and shall not make use of the same for any reason except as expressly authorized by this Agreement or otherwise authorized in writing by DataDirect.
2.2 DataDirect may terminate this Agreement by written notice if User materially defaults in the performance of any provision of this Agreement and fails to cure such default to the satisfaction of DataDirect within thirty (30) calendar days after receipt of notice of the default from DataDirect. This remedy shall not be exclusive and shall be in addition to any other remedies which DataDirect may have under this Agreement or otherwise. Within five (5) days after termination of this Agreement for any reason or expiration of the term of this Agreement (if applicable), User will return to DataDirect or destroy all copies of the Products and certify in writing to such return or destruction of all copies of the Products.
3. Non-Disclosure; Copies; Alterations. User acknowledges that the Products are the valuable proprietary and trade secret information of DataDirect or its licensors (if any). User shall (i) limit use and disclosure of the Products to its employees and to its consultants who agree to be bound by the terms of this Agreement; (ii) not provide or disclose any of the Products to any other party without the prior written consent of DataDirect; and (iii) take all reasonable precautions to maintain the confidentiality of the Products. User agrees, under penalty of license termination but not exclusive of any other remedies, not to cause or permit the reverse engineering, modification, decryption, extraction, disassembly, copying, or decompilation of the Product(s) (except as permitted by applicable law). User may copy the Product(s) only for archival purposes. User may copy the Documentation (in electronic format) solely for the purpose of facilitating User's use of the Product(s) in accordance with, and subject to, the terms and conditions of this Agreement. User may not copy nor allow others to copy the Products or any Product Update, or any portion thereof, for any purpose other than expressly set forth herein. User agrees not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Products and may not disclose any information regarding any benchmark or similar tests of the Product to any third party.
4. Limited Warranty and Disclaimers. DataDirect warrants that for a period of thirty (30) days from User's purchase of the license to use the Products ("Warranty Period"), that the Product media will not be defective and that the copy of the Product delivered to you conforms in all material respects to the Documentation. As the sole and exclusive remedy for defective media, DataDirect will repair or replace free of charge such defective media during the Warranty Period provided such defective media is returned to DataDirect or its supplier within the Warranty Period. As the sole and exclusive remedy for any failure of the Product to materially conform to the Documentation, DataDirect shall repair, replace, or correct the Product if such failure is reported during the Warranty Period or, if DataDirect, at its discretion, reasonably determines that such remedy is not economically or technically feasible, this Agreement, and User's license hereunder, will terminate and DataDirect or its supplier (as applicable) shall provide a full refund of the license fee paid with respect to the particular Product. This warranty does not cover defects due to accident, abuse, service or modification by User or any third party, or any other cause occurring after initial delivery of the Product to User. This warranty is made solely by DataDirect and not its third-party suppliers, as applicable. DataDirect warrants that it has the right to license the Products. DataDirect will defend User against any claim based on an allegation that a Product infringes a U.S. patent or copyright, but only if DataDirect is notified promptly in writing of such claim and is given sole control of the defense thereof and all settlement negotiations relating thereto. Notwithstanding the foregoing, DataDirect shall not be liable to User for any claim arising from or based upon the alteration or modification of any of the Products. THE LIMITED WARRANTY SPECIFIED IN THIS SECTION 4 SETS FORTH THE ENTIRE WARRANTIES AND REPRESENTATIONS PROVIDED BY DATADIRECT TO USER WITH RESPECT TO THE PRODUCTS. SUCH LIMITED WARRANTY IS PROVIDED SOLELY BY DATADIRECT AND NOT DATADIRECT'S LICENSORS. EXCEPT FOR THE LIMITED WARRANTY PROVIDED SOLELY BY DATADIRECT TO USER PURSUANT TO THIS SECTION 4, NEITHER DATADIRECT NOR ITS LICENSORS, NOR ANY OF THEIR RESPECTIVE SUPPLIERS, MAKE ANY EXPRESS WARRANTIES OR REPRESENTATIONS RELATING TO THE PRODUCTS OR ANY SERVICES RELATED THERETO, AND FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE PRODUCTS AND ANY SERVICES RELATED THERETO. Without limiting the scope of the disclaimers set forth herein, DataDirect, for example, does not warrant that there are no discrepancies between the Product(s) and the Documentation, nor that errors cannot arise during the use of the Product(s). Further, the Product(s) are not fault tolerant and are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance (including, without limitation, the design, construction, operation or maintenance of any nuclear facility; direct life support machines; weapon systems; or control of aircraft, air traffic, aircraft navigation or aircraft communications), in which the failure of the Product(s) could lead directly or indirectly to death, personal injury or severe physical or environmental damage. Without limiting the scope of the disclaimers set forth herein, DataDirect for itself and on behalf of its licensors and their respective suppliers, disclaims any express or implied warranty of fitness for any such high risk uses. THE LIMITED WARRANTY SPECIFIED IN THIS SECTION 4 GIVES THE USER SPECIFIC LEGAL RIGHTS, AND MAY ALSO IMPLY OTHER RIGHTS WHICH VARY FROM STATE TO STATE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION ON HOW LONG ANY IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY.
5. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF DATADIRECT, IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS AND/OR SERVICES SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY USER FOR SUCH PRODUCTS AND/OR SERVICES. DATADIRECT'S LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO USER FOR ANY DAMAGES SUFFERED BY USER OR ANY THIRD PARTY AS A RESULT OF USING THE PRODUCTS, OR ANY PORTION THEREOF, OR AS A RESULT OF ANY SERVICES RELATING THERETO. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL DATADIRECT, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, OR ANY PORTION THEREOF, OR ANY SERVICES, EVEN IF DATADIRECT, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY. EACH EXCLUSION OF LIMITATION IS INTENDED TO BE SEPARATE AND THEREFORE SEVERABLE EXCLUSION.
6. Export Regulations. The Products, including technical data, are subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. User shall not directly or indirectly export or re-export the Products, or the direct product thereof, without first obtaining DataDirect's written approval. User agrees to comply strictly with all regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import the Products. The Products may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria, Taliban and areas of Afghanistan controlled by the Taliban, or any country to which the U.S. has embargoed goods; or (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 as amended from time to time.
7. U.S. Government Restricted Rights. If the Products are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government's rights in the Products will be only as set forth herein. Each such Product is a "commercial component," as this term is defined in 48 C.F.R. §2.101, consisting of "commercial computer software" and "computer software documentation," as such terms are defined in 48 C.F.R. §252.227-7014(a)(1) and 48 C.F.R. §252.227-7014(a)(5), respectively, and used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable, and all as amended from time to time. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, and other relevant sections of the Code of Federal Regulations, as applicable, and all as amended from time to time, all U.S. Government entities acquire this Product only with those rights set forth in the license agreement accompanying the Product. Contractor/manufacturer is DataDirect Technologies, an operating company of Progress Software Corporation, 14 Oak Park, Bedford, MA 01730. Unpublished - all rights reserved under the copyright laws of the United States.
8. Records Inspection and Auditing of Usage. User shall maintain books and records in connection with User's actions under this Agreement. Such records shall include at a minimum the number of licenses purchased and being used by User. Upon the request of DataDirect, User agrees to provide a declaration signed by an authorized representative certifying as to the actual number of units (users, servers, CPUs per server, or operating systems, as applicable) of the Product(s) currently in use by User. DataDirect may, at its expense: (a) have DataDirect or a third party audit the records of User to ensure compliance with the terms of this Agreement, (b) bundle, install, enable and utilize automated license tracking, management, and/or enforcement solutions with the Products, which User may not disrupt nor alter, (c) require User to demonstrate the accuracy of the records referenced herein, (d) visit the premises of User and inspect User's use of the Product(s) and (e) evaluate User's network monitoring software or monitoring capabilities to confirm that it adequately protects against User's breach of the provisions of this Agreement and the license granted hereunder. All audits shall be conducted during regular business hours at User's offices and shall not interfere unreasonably with User's activities. If any audit reveals that User has underpaid license and/or support fees to DataDirect, User shall be invoiced for such underpaid license and/or support fees based on DataDirect's list price in effect at the time the audit is conducted. If the underpaid license and/or support fees are in excess of five percent (5%) of the license fees previously paid by User, then User shall pay DataDirect's reasonable costs of conducting the audit and enforcement of this Agreement.
9. Support. If DataDirect offers support and User orders and pays for such support, it shall be provided in accordance with DataDirect's then current technical support policies, a copy of which is located at www.datadirect.com, except that if the Product licensed hereunder is Stylus Studio XML Deployment Components, then to the extent DataDirect offers support for said Product it will be limited to support as described in DataDirect's then current technical support policies for said Product located at http://www.stylusstudio.com/xml_support_faq.html.
10. Miscellaneous. THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND/OR ORDER LETTERS EXPRESSLY REFERENCED HEREIN, CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCTS AND, EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION 10, SUPERCEDES ANY OTHER AGREEMENT, COMMUNICATION OR ADVERTISING, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS. To the extent there are any terms and conditions contained in User's purchase order or other documentation supplied by User ("User Documents"), the terms and conditions contained in the User Documents shall be deemed to be stricken and the terms and conditions of this Agreement shall govern. In the event of a conflict between the provisions of this Agreement and the specific provisions set forth in an Order Letter, the provisions of the Order Letter shall control. This Agreement has been drawn up in English at the express wish of the parties. Le present contrat a ete redige en anglais a la demande expresse des parties. Except as otherwise expressly set forth herein, this Agreement is governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of law principles, and without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal, national or state laws or regulations. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. If the Products are acquired outside the United States and local law is required, such local law shall apply. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. DataDirect's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision.
EXHIBIT A
License Model
Depending on the Products licensed in the Order Letter, the license grant listed in Section 1 is subject to the following descriptions and use restrictions:
(a) Authorized User Basis. If the Product is licensed on an Authorized User basis, the Product may be used on a single computing machine which may be accessed by the number of Authorized Users specified in the Order Letter. An Authorized User is a single individual who has been designated to use the Product. In no event shall the number of persons authorized to have access to the Product exceed the number of Authorized Users identified in the Order Letter. The right to use the Product is not based on concurrent users, but instead on an actual "Authorized User" basis. User must, upon request by DataDirect, identify each Authorized User who will have access to the Product and provide that information to DataDirect.
(b) Workstation Basis. If the Product is licensed on a Workstation basis, each Workstation using or accessing the Product must be licensed. A license must be purchased for each Workstation using or accessing the Product. A "Workstation" shall be defined as a computer that is operated, either attended or via remote access, by one person at a time, and cannot be used by more than one person, directly or indirectly, simultaneously. In no event shall the number of workstations utilizing or accessing the Product exceed the number of Workstations identified in the Order Letter.
(c) Server Basis. If the Product is licensed on a Server basis, then a license fee must be paid for the maximum number of processors ("CPUs") utilized by the Server whether or not such access is simultaneous or consecutive. Servers utilizing dual core processing (or multiple core processing) or other multi-processor technology shall have each core processor count as one (1) CPU. The Product may only be used by server-based applications running on that server accessed by other computers and may not be installed via file sharing on a local area network file system. A "Server" shall be defined as a logical computer with one or more CPUs on which the Product resides, along with the applications utilizing the Product, and which can be accessed by other computers. The term "Server" includes, but is not limited to, web servers, batch servers and application servers.
(d) Evaluation Basis. If the Product is licensed on an Evaluation basis, then it is licensed on a Workstation basis for the Term listed in the Order Letter, subject to the additional restriction that it be used solely for evaluation of software applications and not in conjunction with the development or deployment of such software applications in production. USER UNDERSTANDS AND ACKNOWLEDGES THAT THE PRODUCT LICENSED ON AN EVALUTATION BASIS CONTAINS A DISABLING DEVICE THAT WILL AUTOMATICALLY DISABLE THE EVALUATION SEVEN (7) DAYS FROM INSTALLATION OR, IF A LONGER EVALUATION PERIOD IS AUTHORIZED BY DATADIRECT, THEN UPON THE EXPIRATION OF SAID LONGER PERIOD. NOTHWITHSTANDING THE PROVISIONS OF SECTION 4 OF THE AGREEMENT, USER UNDERSTANDS AND ACKNOLWEDGES THAT PRODUCT LICENSED ON AN EVALUATION BASIS IS PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT.
(e) Developer Basis. If the Product is licensed on a Developer basis, then it is licensed on an Authorized User basis on a single computing machine, subject to the additional restriction that it be used only by developers on development machines for the purpose of developing new applications. Use of the Developer Product to run applications in a production environment or to embed the Developer Product in a User product is expressly prohibited. A separate license must be obtained from DataDirect to run the Product in a production environment or to embed the Product in a User product. Notwithstanding anything to the contrary in DataDirect's SupportLink Terms and Conditions, support for Developer Product is limited to telephone and web-based support solely with problems associated with the initial development of the application. Support shall not be provided with respect to questions and/or problems regarding production environments, run-time issues or troubleshooting for applications that have been previously developed.
(f) Test Basis. If the Product is licensed on a Test basis, then it is licensed on an Authorized User basis on a single computing machine, subject to the additional restriction that it be used solely for internal quality assurance testing purposes, and may not be deployed in a production environment. Use of the Test Product to run applications in a production environment or to embed the Test Product in a User product is expressly prohibited. A separate license must be obtained from DataDirect to run the Product in a production environment or to embed the Product in a User product.
(g) Additional Use Parameters.
(1) Application Specific. If the Order Letter lists a specific application authorized for use with the Product, the Product is licensed for use only with such application. Use with any other application/product is strictly prohibited.
(2) Term. If the Order Letter specifies that User's license to the Products is for a term ("Term"), then the term of this Agreement and User's license to the Products hereunder shall expire on the expiration date stated in the Order Letter, unless sooner terminated in accordance with Section 1.6 of the Agreement. Upon completion of the Term, User shall return all Products licensed under the Order Letter and associated documentation and related information (including all copies) to DataDirect, or certify its destruction in a writing delivered to DataDirect. All license rights in and to the Products under the terms of the Agreement shall terminate at the end of the Term.
(3) Operating Systems or Platforms. If the Order Letter specifies that User's license to the Products is limited to a specific Operating System ("OS") or Platform, then the Product is licensed with the additional restriction that it be used solely in conjunction with the specified OS or Platform. Use with any other OS or Platform is strictly prohibited.
(4) Disaster Recovery. If the Order Letter specifies that User's license to the Products is restricted to use for disaster recovery, then the Product is licensed for use for the sole purposes of application recovery in the event a system fails or crashes or the application or database files become corrupt.
(5) DataDirect Connect for ODBC and DataDirect SequeLink for ODBC. If the Product licensed to User is DataDirect Connect for ODBC or DataDirect SequeLink for ODBC, the following additional requirements set forth in this section shall apply. DataDirect has licensed, and has rights to sub-license certain third party software that is part of the ODBC SDK components and which is usable for certain non-Windows platforms - Mac OS, OS/2, HP-UX, AIX, Linux, Solaris, and other non-Windows operating systems. This section sets forth the conditions that govern User's permitted use of the various non-windows SDK components: User is not licensed to use the ODBC Core Components (hereinafter defined) other than with DataDirect Connect for ODBC drivers and DataDirect SequeLink for ODBC drivers. Use of the ODBC Core Components with any ODBC drivers other than those licensed from DataDirect is expressly prohibited. User may not embed in any products, or otherwise sub-license the ODBC Core Components, without a separate license agreement. For the purposes hereof, the term "ODBC Core Components" shall mean the ODBC Driver Manager and support files for non-Windows operating systems. A separate license must be obtained from DataDirect if User wants to embed and sub-license the ODBC Header Files (hereinafter defined) with any software product. For the purposes hereof, the term "ODBC Header Files" shall mean the text files for compilation and development of software.
(6) DataDirect Connect for JDBC or DataDirect SequeLink for JDBC . If the Product licensed to User is DataDirect Connect for JDBC or DataDirect SequeLink for JDBC the following third-party specific requirements from Sun Microsystems Inc. shall apply: User may not modify the Java(tm) Platform Interface ("JPI", identified as classes contained within the "java" package or any subpackages of the "java" package), by creating additional classes within the JPI or otherwise causing the addition to or modification of the classes in the JPI. In the event that User creates an additional class and associated API(s) which (i) extends the functionality of the Java Platform, and (ii) is exposed to third party software developers for the purpose of developing additional software which invokes such additional API, User must promptly publish broadly an accurate specification for such API for free use by all developers. User may not create, or authorize User's licensees to create additional classes, interfaces, or subpackages that are in any way identified as "java", "javax", "sun" or similar convention as specified by Sun in any naming convention designation.
(7) DataDirect XQuery. If the Product licensed to User is DataDirect XQuery the following requirements shall apply:
(i) DataDirect XQuery includes the jsr173_1.0_api.jar which is subject to the additional terms and conditions: (i) DataDirect's licensors make no warranties or conditions with respect to the jsr173_1.0_api.jar, express or implied, including warranties or conditions of title and non-infringement, and implied warranties or conditions of merchantability and fitness for a particular purpose; (ii) DataDirect disclaims on behalf of its licensors all damages, including direct, indirect, special, incidental and consequential damages, such as lost profits; (iii) any provisions in this Agreement which differ from the Streaming API for XML (JSR-173) Specification Reference Implementation License Agreement (a copy of which is included with the Product in a text file) are offered by DataDirect alone and not by any other party; and (iv) the source code for the jsr173_1.0_api.jar is available at http://jcp.org/aboutJava/communityprocess/final/jsr173/index.html.
(ii) Java Technology Restrictions. User may not create, modify, or change the behavior of, or authorize User's licensees to create, modify, or change the behavior of, classes, interfaces, or subpackages that are in any way identified as "java", "javax", "sun" or similar convention as specified by Sun in any naming convention designation.
(iii) For each license of DataDirect XQuery in a particular Order Letter, User is granted a corresponding license for Stylus Studio XML Deployment Adapters ("Deployment Adaptors"). For example, if an Order Letter specifies that User is licensing DataDirect XQuery on a Workstation basis for 10 Workstations, User shall also receive 10 Workstation licenses of the Deployment Adaptors. Notwithstanding anything herein to the contrary, DataDirect grants User a license to use the Deployment Adaptors only with DataDirect XQuery. Use with any other application/product is strictly prohibited. This Agreement shall govern the use of such Deployment Adaptors.
(8) MVS or OS/390 Operating System Image Basis. If the Product is licensed to User on an MVS or OS/390 Operating System Image basis, then a license fee must be paid for the number of MVS or OS/390 Operating System Images where the Product is installed. User shall identify the number of MVS or OS/390 Operating System Images where the Product is installed and provide the information to DataDirect.
(9) Stylus Studio XML Deployment Components. If the Product licensed to User is Stylus Studio XML Deployment Components, the following third-party specific requirements from Sun Microsystems Inc. shall apply: User may not modify the Java Platform Interface ("JPI", identified as classes contained within the "java" package or any subpackages of the "java" package), by creating additional classes within the JPI or otherwise causing the addition to or modification of the classes in the JPI. In the event that User creates an additional class and associated API(s) which (i) extends the functionality of the Java platform, and (ii) is exposed to third party software developers for the purpose of developing additional software which invokes such additional API, User must promptly publish broadly an accurate specification for such API for free use by all developers. User may not create, or authorize your licensees to create additional classes, interfaces, or subpackages that are in any way identified as "java", "javax", "sun" or similar convention as specified by Sun in any naming convention designation.