Poseidon for UML - Standard Edition 6.0.0

EULA - End User License Agreement

GENTLEWARE SINGLE USER LICENSE TERMS AND CONDITIONS
THE FOLLOWING TERMS AND CONDITIONS CREATE A SOFTWARE LICENSE AGREEMENT ("LICENSE AGREEMENT") BETWEEN GENTLEWARE AG (REFERRED TO AS "GENTLEWARE") AND THE INDIVIDUAL OR SINGLE ENTITY REFERRED TO HEREIN AS "YOU" OR "LICENSEE" FOR THE "LICENSED SOFTWARE" (AS DEFINED BELOW). PLEASE READ THESE LICENSE TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING OR USING THE LICENSED SOFTWARE. GENTLEWARE IS WILLING TO GRANT LICENSEE THE FOLLOWING LICENSE TO USE THE LICENSED SOFTWARE ACCORDING TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ONLY ON THE CONDITION THAT LICENSEE ACCEPTS ALL TERMS AND CONDITIONS IN THIS LICENSE AGREEMENT.

BY CLICKING ON THE "ACCEPT" BUTTON BELOW, OR BY INSTALLING OR USING THE LICENSED SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS BELOW, GENTLEWARE IS UNWILLING TO LICENSE THE LICENSED SOFTWARE TO YOU, AND YOU SHOULD CLICK ON THE "DO NOT ACCEPT" BUTTON BELOW TO DISCONTINUE THE INSTALLATION PROCESS. IN SUCH CASE, YOU MAY, WITHIN TEN (10) DAYS AFTER YOUR RECEIPT OF THE LICENSE SOFTWARE, RECEIVE A REFUND OF THE PURCHASE PRICE. BY ASKING FOR A REFUND YOU STATE; THAT YOU HAVE DESTROYED ALL COPIES OF THE LICENSED SOFTWARE.
1. DEFINITIONS.

1.1 "Licensed Developer" means an individual software developer, employed by or under contract to Licensee, whom Licensee has designated as a "Licensed Developer," and for whom Licensee has paid the applicable per product or per module license fees required to authorize such person to use such products or modules on Licensee's behalf.

1.2 "Licensed Software" means the Gentleware software components in binary form for which Licensee has paid the applicable per product or per module license fees, together with the user guides, build guides, reference manuals and other documentation accompanying such software components or otherwise made available by Gentleware (collectively, the "Documentation"), any executables delivered with the software components and any modified or updated versions of any of the foregoing made available to Licensee pursuant to Licensee's purchase of Upgrades and receipt of minor releases subject to Gentleware's maintenance and support policies.

1.3 "Upgrades" means major releases providing bug fixes, platform updates and major product enhancements or new features.

1.4 Major releases are identified by a change in the first digit of the three digit release number (x.0.0).

1.5 "Maintenance and Support" means the technical support and software maintenance services on the Licensed Software. It includes bug fixes, platform updates and minor product enhancements as contained in minor releases as well as email-support.

1.6 Minor releases are identified by a change in the second or third digit of the three digit release number (1.x.0 or 1.0.x).
2. LICENSE GRANTS.

2.1 Licenses. For each license that Licensee acquires to use the Licensed Software, Licensee will be provided with a Certificate (a "Certificate"), which may be either the installation and licensing instructions, Licensee's invoice, or a license key and which may be provided to Licensee by Gentleware or its authorized distributors or resellers. The Certificate will contain information specific to the edition of Licensed Software, the type of license under which Licensee may use Licensed Software and the number of licenses that Licensee has acquired. The type of license a Licensee may acquire according to this License Agreement is either a Single User License or an Evaluation License, all defined in section 2 of this License Agreement.

2.2 Single User License. The terms of this section 2.2 are applicable to the Licensee only if Licensee has purchased a Single User License, as defined below, for the Licensed Software directly from Gentleware or a Gentleware authorized distributor or reseller. Subject to the terms and conditions of this License Agreement, Gentleware grants to Licensee a nonexclusive, nontransferable, perpetual, limited right and license to: (a) permit Licensed Developers to install and use the Licensed Software, on a per product or per module basis, for the sole purpose of creating Applications; (b) copy or have copied the Licensed Software as necessary for the purpose of exercising the rights granted under this Section 2 or for back-up or disaster recovery purposes, provided, that Gentleware's copyright notice and other proprietary rights notices are reproduced on each copy.

2.3 Evaluation License. In order to evaluate Gentleware software components, Licensee may install Gentleware software components on a temporary basis for evaluation, non-commercial purposes only ("Evaluation License"). An Evaluation License is limited to the period of time specified to Licensee by Gentleware. At the end of this period the license to use Gentleware software components expires. With the Evaluation License, Gentleware grants to Licensee a nonexclusive, nontransferable and limited right to use Gentleware software components solely for evaluation purposes. The Evaluation License contains a time-out feature that disables its operation after its expiration. Projects that Licensee creates with the Evaluation License may require Licensed Software to be loaded. Upon expiration of the Evaluation License, those applications will no longer run. In order to use Gentleware software components after the evaluation period, Licensee must obtain from Gentleware, or its authorized distributors or resellers a Certificate outlining the number and type of license grants to use Gentleware software components according to the terms and conditions of this License Agreement. At the end of the evaluation period, further use of the Evaluation License is prohibited without the purchase of a commercial license to obtain a Certificate for Licensed Software. If Licensee does not purchase a license at the end of the evaluation period, Licensee hereby agrees to permanently remove or delete the Evaluation License from all computer systems on which the Evaluation License was installed and destroy any software and documentation received.
3. LICENSE RESTRICTIONS AND LICENSEE RESPONSIBILITIES.

3.1 Restrictions. The rights granted to Licensee in Section 2.2 may only be exercised by individual developers employed by or under contract to Licensee that Licensee has designated as "Licensed Developers" and for whom Licensee has paid the applicable per product or per module license fees. If one Licensed Developer ceases to be employed by or under contract to Licensee or permanently ceases work on projects involving the Licensed Software, then Licensee may designate an alternate developer to replace such Licensed Developer at no additional cost. However, the license is not a concurrent license that may be used by numerous developers in shifts. Licensee may not create a programmatic interface that makes use of the Licensed Software application programming interfaces for use by any party other than Licensed Developers and must ensure that persons other than Licensed Developers do not have programmatic access to the Licensed Software either directly or indirectly.

3.2 General Use Limitations. All rights not specifically granted herein are retained by Gentleware. Licensee may not, nor may Licensee permit any other person or entity to use, copy, modify, or distribute the Licensed Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, or the Documentation except as expressly authorized by Gentleware. Licensee may not modify or port the Licensed Software to operate on platforms other than those for which it has paid the appropriate fees. Licensee may not, nor may Licensee permit any other person or entity to, reverse assemble, reverse compile, or otherwise translate any binary forms of the Licensed Software, except to the extent applicable laws specifically prohibit such restriction. Licensee's rights may not be transferred, leased, assigned, or sublicensed except for a transfer of the License Agreement in its entirety to (1) a successor in interest of Licensee's entire business who assumes the obligations of this License Agreement or (2) any other party who is reasonably acceptable to Gentleware, enters into a substitute version of this License Agreement, and pays an administrative fee intended to cover attendant costs. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by Gentleware. If Licensee uses, copies, or modifies the Licensed Software or transfers possession of any copy, adaptation, transcription, or merged portion thereof to any other party in any way not expressly authorized by Gentleware, all licenses under this License Agreement are automatically terminated.

3.3 Proprietary Protection. Gentleware shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Software and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Licensee herein by Gentleware. This License Agreement does not provide Licensee with title or ownership of the Licensed Software, but only a right of limited use.

3.4 Compliance Verification. Licensee must have a commercially-reasonable process in place to track the number of developers using the Licensed Software in order to ensure that the appropriate license fees have been paid. Licensee will, upon Gentleware's request, certify in writing the number developers using the Licensed Software, on per product or per module basis, as of the date of the request. In the event Licensee fails to provide such certification within thirty (30) days of Gentleware's request, or, if Gentleware reasonably believes that a certification provided by Licensee is inaccurate, Licensee will permit Gentleware, or a mutually-approved independent representative, to enter Licensee's premises, during regular business hours, to verify Licensee's compliance with the terms of this License Agreement.

3.5 Confidentiality. Licensee agrees to maintain in confidence the Licensed Software by using at least the same physical and other security measures as Licensee uses for its own confidential technical information and documentation, but in no case less than reasonable measures. Licensee further agrees not to disclose the Licensed Software, or any aspect thereof, to anyone other than employees or contractors who have a need to know or obtain access to such information in order to support Licensee's authorized use of the Licensed Software and are bound to protect such information against any other use or disclosure. These obligations shall not apply to any information generally available to the public.

3.6 Using of Licensed Software. The Licensed Software is intended for use by sophisticated individuals. Licensee is responsible for selecting persons who are qualified to use the Licensed Software on Licensee's own equipment and are familiar with the Licensed Software. Licensee represents that it has the requisite expertise to evaluate the suitability of the Licensed Software and that it has undertaken its own investigation of the suitability of the Licensed Software. Licensee represents that it has relied upon its own skill and judgement in selecting the Licensed Software.

3.7 Remedies. Licensee acknowledges that, in the event of Licensee's breach of any of the foregoing provisions, Gentleware will not have an adequate remedy in money or damages. Gentleware will therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request without posting a bond. Gentleware's right to obtain injunctive relief shall not limit its right to seek further remedies.
4. MAINTENANCE AND SUPPORT OF LICENSED SOFTWARE. Gentleware or its authorized resellers shall provide Maintenance and Support on the Licensed Software. Maintenance and Support services provided by Gentleware are provided in accordance with Gentleware's maintenance and support policies, which are subject to change. Maintenance and support is limited to platforms listed on Gentleware's current product support matrix, which is also subject to change. Licensee is responsible for ensuring that its debvelopment environment is on the current product support matrix. Off-matrix support is available from Gentleware on the basis of special maintenance agreements to be negotiated.
5. UPGRADES OF LICENSED SOFTWARE. Gentleware shall provide Upgrades on the Licensed Software on the basis of a separate Upgrade Subscription Agreement or on a case by case basis. The provision of Upgrades (major releases) occurs under the sole discretion of Gentleware.
6. LIMITED WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY.

6.1 Limited Warranty. Gentleware warrants to Licensee that the unaltered Licensed Software, when used as permitted under the License Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation for a period of ninety (90) days from the date of delivery (the "Software Warranty Period"). The Licensed Software is provided to Licensee as binary code and is for use by sophisticated individuals, and Gentleware does not warrant that use of the Licensed Software will be uninterrupted or error-free, that all errors will be corrected, or that use of the Licensed Software will meet Licensee's needs. Gentleware will, at its own expense and as its sole obligation and Licensee's sole and exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Licensed Software reported to Gentleware by Licensee in writing during the Software Warranty Period; provided, however, that no such error correction provided to Licensee will extend the original Software Warranty Period. If Gentleware determines that it is unable to correct the error, Gentleware may, upon approval by Licensee, refund to Licensee the fees paid by the Licensee for the defective Licensed Software and terminate the License Agreement and all licenses granted herein. In the event Licensee does not approve of such refund and termination of the License Agreement, Licensee will be entitled to keep the Licensed Software and use it pursuant to the licenses granted herein; provided, however, that Gentleware will not be obligated to provide Maintenance and Support for the Licensed Software that is impacted by the reported defect.

6.2 Exclusions. The limited warranty set forth above will not apply to defects resulting from, or because of, modifications made to the Licensed Software by anyone other than Gentleware, misuse, failure of media not furnished by Gentleware, operation with media, software or equipment not authorized by Gentleware in the Documentation or not meeting or not maintained in accordance with the supplier's specifications, or causes other than ordinary use. The warranty set forth above will not be enlarged, diminished or affected by, and no obligation or liability will arise from, Gentleware's rendering of technical advice, assistance or service in connection with Licensee's selection or use of the Licensed Software.

6.3 DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 ABOVE, THE LICENSED SOFTWARE IS PROVIDED "AS IS," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. GENTLEWARE SPECIFICALLY DISCLAIMS ALL OTHER PROMISES, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING.

6.4 LIMITATION OF LIABILITY. THE CUMULATIVE LIABILITY OF GENTLEWARE TO LICENSEE FOR ALL CLAIMS RELATING TO THE LICENSED SOFTWARE AND THIS LICENSE AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES PAID TO GENTLEWARE HEREUNDER. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS LICENSE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO THE INDEMNIFICATION PROVIDED IN SECTION 6 HEREOF. GENTLEWARE SHALL HAVE NO LIABILITY FOR LOSS OF DATA OR DOCUMENTATION, IT BEING UNDERSTOOD THAT LICENSEE IS RESPONSIBLE FOR REASONABLE BACK-UP PRECAUTIONS. IN NO EVENT SHALL GENTLEWARE BE LIABLE FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST LICENSEE, EVEN IF GENTLEWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS LICENSE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. LICENSEE MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (E.G., CONSUMER LAWS) THAT DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF SUCH LAWS APPLY, CERTAIN EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE; HOWEVER, ALL OTHER RESTRICTIONS AND LIMITATIONS SHALL REMAIN IN EFFECT.
7. INDEMNIFICATION. If a third party claims that the Licensed Software infringes its patent, copyright, or trade secret, or any similar intellectual property right, Gentleware will defend Licensee against that claim at Gentleware's expense and pay all damages that a court finally awards, provided that Licensee promptly notifies Gentleware in writing of the claim, and allows Gentleware to control, and cooperates with Gentleware in, the defense or any related settlement negotiations. If such a claim is made or appears possible, Licensee agrees to permit Gentleware to enable Licensee to continue to use the Licensed Software, or to modify or replace it. If Gentleware determines that none of these alternatives is reasonably available, Licensee will agree to return the Licensed Software on Gentleware's written request, and Licensee will then receive a credit equal to the net book value for the Licensed Software determined in accordance with generally accepted accounting principles. However, Gentleware has no obligation for any claim based on Licensee's modification of the Licensed Software or its combination, operation, or use with any product, data, or apparatus not specified or provided by Gentleware, provided that such claim solely and necessarily is based on such combination, operation, or use, and such claim would be avoided by combination, operation, or use with products, data, or apparatus specified or provided by Gentleware. THIS PARAGRAPH STATES GENTLEWARE'S ENTIRE OBLIGATION TO LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
8. TERMINATION.

8.1 Term. The term of this License Agreement will begin as of the date that Licensee receives the Licensed Software and will remain in effect perpetually unless terminated under this Section 8.

8.2 Termination for Convenience. Licensee may terminate this License Agreement for any reason, or for no reason, by giving Gentleware thirty (30) days written notice.

8.3 Termination for Cause. Gentleware may terminate this License Agreement if Licensee breaches its obligations hereunder. Gentleware will effect such termination by giving Licensee notice of termination, specifying therein the alleged breach. If the breach is curable, Licensee will have a grace period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is cured within the thirty (30) day grace period, then this License Agreement will remain in effect; otherwise, this License Agreement will automatically terminate upon the conclusion of the thirty (30) day grace period.

8.4 Effect of Termination. Upon termination of the License Agreement for any reason the following terms shall apply: (a) all rights granted under this License Agreement will immediately terminate and Licensee must immediately stop all use of the Licensed Software; (b) Licensee must destroy all copies of the Licensed Software provided to or made by or on behalf of Licensee, and will, within ten (10) days after the effective date of termination, provide Gentleware with written certification that all such copies have been returned or destroyed; and (c) all provisions of this License Agreement with the exception of the licenses granted in Section 2 , Maintenance and Support obligations set forth in Section 4 and Upgrade obligations set forth in Section 5 will survive termination of this License Agreement for any reason. Termination of the License Agreement will not affect Licensee's obligation to pay all amounts accrued hereunder prior to the effective date of termination.
9. MISCELLANEOUS.

9.1 Severability. If any term or provision of the License Agreement is found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, the License Agreement will remain in full force and effect, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

9.2 Governing Law/Forum Selection. The License Agreement and the parties' rights and obligations hereunder shall be solely and exclusively construed, interpreted and enforced under and in accordance with the laws of Germany, without any reference to conflicts of law principles. The parties agree that the U.N. Convention on the International Sale of Goods shall not apply to the License Agreement. Any and all disputes between the parties that cannot be amicably resolved, arising under, out of, or otherwise relating to the License Agreement, Licensed Software or any services provided by Gentleware to Licensee shall be brought and resolved solely and exclusively in the courts located in Hamburg, Germany. Both parties hereby irrevocably consent to the jurisdiction of such courts and service of process in connection therewith. Any judgment rendered by such courts may be entered and enforced by any court having jurisdiction over the party against which an award is entered or its assets. Both parties hereby irrevocably waive any objections to the jurisdiction of such courts based on any ground, including without limitation improper venue or forum non convenience.

9.3 No Joint Venture. Nothing contained in the License Agreement will be construed so as to make the parties partners or joint ventures or to permit either party to bind the other party to any agreement or purport to act on behalf of the other party in any respect.

9.4 Waiver and Modifications. Failure by either party to enforce any rights under this License Agreement will not be construed as a waiver of such rights, and a waiver by either party of a default hereunder in one or more instances will not be construed as constituting a continuing waiver or as a waiver in other instances. No modification of this License Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.

9.5 Export Law. Licensee may not use or otherwise export or re-exports the Licensed Software except as authorized by German law and the laws of the jurisdiction in which the Licensed Software was obtained.

9.6 English Language. The parties hereto have expressly required that the present License Agreement be drawn up in the English language.

THE LICENSED SOFTWARE IS PROTECTED BY COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

Copyright 2007, Gentleware AG. All Rights Reserved.