End user agreement for TOAD for DB2 UDB
Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY INSTALLING OR USING THIS SOFTWARE, YOU INDICATE ACCEPTANCE OF AND AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL OR USE THIS SOFTWARE AND PROMPTLY RETURN IT TO QUEST SOFTWARE.
THIS AGREEMENT DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN LICENSEE AND QUEST SOFTWARE.
This agreement is made between Quest Software, Inc. (hereafter referred to as "Quest") and you, the customer, (hereafter referred to as "LICENSEE"). For the purpose of this agreement, the purchased computer software program(s) and supporting documentation will be referred to as the "Software".
1. License. Subject to the terms and conditions of this Agreement, the Software listed on the applicable Order Form is licensed, not sold, to Licensee by Quest for the fees as outlined on said form. By using the Software you represent and warrant that you are not located in, under control of, or a national or resident of any country outside of the jurisdiction of the laws of the United States of America. The "License" granted hereunder shall be perpetual, non-exclusive, and non-sublicensable, and is defined as Licensee's right to:
For the number of copies licensed, use one copy of the Software on a single computer at a time. "Use" of the Software shall mean the loading the Software in the temporary memory (e.g., RAM) of a computer, the installation of the Software on the permanent memory of a computer (e.g., hard disk, etc.), and the operation of the Software in accordance with the applicable documentation; and
Make one copy (in machine readable form only) of each copy of the Software licensed hereunder solely for backup or disaster recovery purposes. However, Licensee must reproduce on each such copy without modification all copyright and other proprietary notices that are on the original copy.
2. Restrictions. Quest reserves any rights not expressly granted to Licensee and retains title and full ownership rights under the copyright laws of the United States or any other jurisdiction or under any federal, state, or foreign laws. Quest is not obligated to provide and Licensee acquires no right of any kind with respect to any source code for the Software. Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee shall not, nor permit any third party to reverse engineer, decompile, disassemble or otherwise reduce the Software to any other humanly perceivable form, and may not modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof.
3. Assignment. Licensee may not assign or transfer its rights and obligations under this Agreement without prior written approval by Quest and any purported assignment without Quest's consent shall be null and void.
4. Termination. This License is effective until terminated, either through mutual agreement by the parties or by Licensee's material breach of this Agreement. This License will terminate immediately if Licensee fails to comply with any material provision of this License and does not cure any such breach within ten (10) days of written notice. Upon termination Licensee must immediately destroy the Software and all accompanying written materials and all copies thereof (including copies stored in computer memory) and shall so certify to Quest in writing. Sections 3, 6, 7, 8, 9, 10 and 11 will survive termination for any reason.
5. Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority, without all required licenses and proper authorizations, to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to any Group D:1 or E:2 country (or any national of such country) specified in the then current Supplement No. 1 to Part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations).Notwithstanding the foregoing, Licensee may export or re-export the Software between the United States and Canada, provided Licensee's principle place of business is in North America.
6. Maintenance. During any Maintenance Period and for the fees as outlined on the applicable Order Form, Quest shall provide the maintenance services as listed in this Paragraph 8. "Maintenance Period" shall be defined as the one (1) year period beginning on the date of the first invoice for the Software or from the conclusion of any previous Maintenance Period, provided Licensee is current on all fees due. Quest shall invoice Licensee annually for the maintenance fees. Either party may elect not to renew maintenance services by terminating maintenance in writing, in which case Quest will no longer be responsible for providing maintenance. Payment of any and all past maintenance fees, plus a re-instatement fee of 25% of the annual maintenance fee, shall be required before maintenance will be reinstated after it has lapsed. Maintenance services shall include the following:
Quest shall make Software corrections and enhancements available to Licensee if and when it makes them generally available to its client base.
Quest shall respond to unlimited communications from Licensee that report software failures not previously reported to Licensee.
Quest shall respond to a reasonable number communications from Licensee's Technical Coordinators that request consultation on the operational/technical aspects of the Software.
For all Software other than SQL Navigator and TOAD, Quest's support service shall be available via telephone or email on business days between the hours of 7:00 a.m. and 5:00 p.m. PST. During those hours, Quest shall respond to inquiries within four (4) hours of receipt of such inquiry. For the SQL Navigator and TOAD Software, Quest's support service shall be available via email or the Internet on business days between the hours of 7:00 a.m. and 5:00 p.m. PST. During those hours, Quest shall respond via email to inquiries within twenty-four (24) hours of receiving such.
7. Limited Warranty. Quest warrants that it or its licensors retain(s) all intellectual property rights in the Software and any accompanying written materials provided by Quest, including but not limited to copyright, and that it has the legal right to grant Licensee the License granted under this Agreement. Quest also warrants for a period of thirty (30) days from the Agreement Date that (i) the media provided by Quest, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the operation of the Software, as provided by Quest, will substantially conform to Quest's published documentation for the Software. In the event Licensee notifies Quest during the warranty period that the Software does not meet these standards, Quest shall, at its sole option and expense, either replace the media, refund the purchase price, or repair or replace the Software as Licensee's sole and exclusive remedy.
UNLESS OTHERWISE SPECIFICALLY DEFINED WITHIN THIS AGREEMENT, THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY QUEST AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS.
8. Year 2000 Readiness. Quest warrants and represents that the Software is "Year 2000 Ready." "Year 2000 Ready" means that the Software has the ability to (i) accept input and provide output of data involving dates correctly and without ambiguity as to the twentieth or twenty-first centuries; (ii) manage, store, manipulate, sort, sequence, and perform calculations (collectively "process") with respect to data involving dates before, during, and after January 1, 2000 (including single century or multi-century date formulas) without malfunction or aborts; and (iii) correctly process leap years including the year 2000, provided that all other products (e.g., hardware, software, and firmware) used with the Software properly exchange date data with it. Functional errors will be accepted as problems and resolved only for customers with active maintenance support according to Quest's standard maintenance policies. Quest's entire liability and Licensee's sole and exclusive remedy under this Paragraph 8 shall be repair or replacement of the Software, or, at Quest's option, refund of the purchase price paid by Licensee for the Software pro-rated over a five (5) year period from the date of the applicable Order Form.
9. Limitation of Remedies and Damages. IN NO EVENT WILL QUEST, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF QUEST OR A QUEST REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. QUEST'S LIABILITY TO LICENSEE FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO QUEST FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST QUEST LATER THAN ONE YEAR FROM THE TERMINATION OF THIS AGREEMENT.
10. Nondisclosure. "Confidential Information" shall be defined to include Software, source code, object code, documentation and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by Quest to Licensee and not generally known by non-Quest personnel, which Licensee may gain access to or knowledge of as a result of this Agreement. Licensee shall observe complete confidentiality with respect to the Software and Confidential Information, and shall use its best efforts and take all reasonable steps to protect the Software and Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. Licensee shall promptly notify Quest of any known unauthorized use or disclosure of the Software and will cooperate with Quest in any litigation brought by Quest against third parties to protect its proprietary rights.
11. Injunctive Relief and Cumulative Remedies. Licensee hereby expressly agrees that Quest, in addition to any other rights or remedies which Quest may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement. No remedy conferred on Quest by any specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given herein or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by Quest shall not constitute a waiver of the right to pursue other available remedies.
12. General. This license will be construed under the laws of the State of California, except for that body of law dealing with conflicts of law. In the event there is a dispute concerning the subject matter of this agreement, the proper venue shall be the County of Orange, State of California, United States of America. If any provision of this License shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this License will remain in full force and effect. If the Software is supplied to the United States Government, the Software is classified as "restricted computer software" as defined in clause 52.227-19 of the FAR. If any provision of this License shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this License will remain in full force and effect.
This Agreement does not supercede any written agreement between Licensee and Quest Software.
GNU GENERAL PUBLIC LICENSE
Version 2, June 1991
Copyright (C) 1989, 1991 Free Software Foundation, Inc.
59 Temple Place, Suite 330, Boston, MA 02111-1307 USA
Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed.
The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. This General Public License applies to most of the Free Software Foundation's software and to any other program whose authors commit to using it. (Some other Free Software Foundation software is covered by the GNU Library General Public License instead.) You can apply it to
your programs, too.
When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things.
To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.