FOURTH ELEPHANT Inc. Software License Agreement
Please read this Agreement carefully
THIS DOCUMENT STATES THE TERMS AND CONDITIONS UPON WHICH FOURTH ELEPHANT, INC. ("FOURTH ELEPHANT" ) WILL PROVIDE ITS SOFTWARE TO YOU.
THIS SOFTWARE LICENSE AGREEMENT CONSTITUTES A CONTRACTUAL AGREEMENT BETWEEN YOU AND FOURTH ELEPHANT INC. PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY.
BY POINTING TO AND CLICKING ON THE 'ACCEPT' BUTTON, YOU ARE MANIFESTING YOUR UNDERSTANDING AND ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR ACCEPT ITS TERMS, POINT TO AND CLICK ON THE 'DECLINE' BUTTON.
If you have any questions regarding the terms of this Agreement, please click on the 'DECLINE' button and send electronic mail to: sales@fourthelephant.com
THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") governs your use of the Software and Documentation (as hereinafter defined), and your responsibilities as a User (as hereinafter defined).
1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the respective meanings set forth below:
"Software" means the object code version of the FOURTH ELEPHANT software Insider for Oracle, and other software components included in Insider for Oracle, as well as any software updates, add-on components, services, and/or supplements provided subsequent to the initial copy of the Software, to the extent that such items are not accompanied by a separate license agreement or terms of use.
"Database" means an Oracle database.
"Oracle License" means a single license granted by Oracle as of the date hereof for the use of Oracle Database software.
"Server" means a computer that serves as a central repository of data and programs shared by users in a network.
"CPU" means a central processing unit. In the case of multiple cores each core is counted as one CPU.
"4-CPU Server" means a server having not more than four CPUs.
"8-CPU Server" means a server having more than four but not more than eight CPUs.
"16-CPU Server" means a server having more than eight but not more than sixteen CPUs.
"32-CPU Server" means a server having more than sixteen but not more than thirty two CPUs.
"33+CPU Server" means a server having thirty three or more CPUs.
"Confidential Information" means all confidential, proprietary or secret information of FOURTH ELEPHANT, including without limitation the Software, Documentation, components, parts, drawings, data, sketches, flow charts, plans, reports, handbooks, programs, data, source code, object code, screen displays, feedback, evaluation results, evaluation reports, test results, test reports, reports of errors, problems, defects or suggestions, specifications, features, techniques, processes, algorithms, inventions, other information or material, which is provided or disclosed by FOURTH ELEPHANT to User for the purposes specified in this Agreement, or is derived or produced by User pursuant to this Agreement, whether such information is disclosed by FOURTH ELEPHANT or User, as the case may be, (a) in writing or other tangible medium, (b) visually, or (c) orally.
"Documentation" means the user guide(s) and other documentation delivered by FOURTH ELEPHANT in paper or digital form to User with the Software.
"Fees" means license fees corresponding to the number of monitored Databases on a 4-CPU Server, an 8-CPU Server, a 16-CPU Server, a 32-CPU Server or a 33+CPU Server (as set forth in FOURTH ELEPHANT's price schedule) and support fees.
"User" means you, the entity you represent and your or its representatives, successors, assigns and affiliates. To be eligible for discounted Fees and subject to restrictions set forth in Section 2, a User must be an Academic User (defined in Section 2.4), a Limited User (defined in Section 2.5) or a Service Provider (defined in Section 2.6).
2. LICENSE GRANT
2.1 Evaluation Period. A temporary evaluation license for the Software is provided for a period of thirty (30) days ("Evaluation Period") from the date of delivery of the Software and is subject to all terms set forth in this Agreement. A temporary evaluation license is not for general commercial use and User is not permitted to use the Software during Evaluation Period for any purpose other than to determine whether the Software meets User's requirements. To obtain the right to use the Software for general commercial use and for the period beyond the Evaluation Period, User must pay an applicable license fee. The Software contains a feature that will automatically disable the Software in thirty (30) days after installation. User may not disable, destroy, or remove this feature of the Software, and any attempt to do so will be in violation of this Agreement and will terminate User's license to use the Software. User agrees to uninstall the Software, upon the expiration of the Evaluation Period.
2.2 Software & Documentation. Subject to the terms and conditions contained herein, FOURTH ELEPHANT grants to User, and User accepts, a non-exclusive, nontransferable right and license (a) to use the Software to monitor Databases on that size of a Server for which User paid an applicable License Fee for User's internal business purposes only (except in the case of a Service Provider), and only in conjunction with that number of Databases and type of Servers for which User purchased a corresponding Software license and (b) to use the Documentation, in each of the foregoing cases only for its own internal business purposes. User may not copy the Documentation. Additional copies of the Documentation and licenses for additional Databases, each subject to the same limitations as set forth herein, may be purchased from FOURTH ELEPHANT at FOURTH ELEPHANT's then current prices. Except as specifically permitted in this Agreement, User shall not directly or indirectly (i) use any Confidential Information to create any software or documentation that is similar to any of the Software or Documentation; (ii) encumber, transfer, rent, lease, time-share or use the Software in any service bureau arrangement; or (iii) copy (except for archival purposes), distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify the Software or permit any third party to engage in any of the acts proscribed in clauses (i) through (iii). User assumes sole responsibility for obtaining any software required for use of the Software, including any operating system software, database software, or third party applications software. Except to the extent otherwise set forth in a separate written agreement between User and FOURTH ELEPHANT, User shall be solely responsible for the implantation, configuration, and operation of the Software, including but not limited to, all of the cost and expense in obtaining and preparing the site and any computer machine for the Software and obtaining Oracle Licenses. User may not install or use the Software on any computer machine or other computer system/network environment not configured and conforming to FOURTH ELEPHANT's specifications.
2.3 Number of Software Licenses. One Software license is required for each monitored Database, and User must use the Software to monitor Databases only on that size Server for which User paid an applicable license Fee. By way of an example only, if User wishes to use the Software to monitor two (2) Databases on a 4-CPU Server and also to monitor three (3) Databases on an 8-CPU Server , then User must purchase two (2) Software licenses priced for a 4-CPU Server and three (3) Software licenses priced for an 8-CPU Server.
2.4 Service Providers. A service provider may not use the Software licensed hereunder to provide services to third parties unless the service provider purchased a Software license specifically priced and licensed for a "Service Provider." On the other hand, a License priced for a Service Provider may not be used for User's internal business purposes unless a corresponding internal License is purchased.
2.5 Reverse Engineering. Except as described in this Section 2.5, User is not permitted (a) to decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Software, (b) to use any similar means to discover the source code of the Software or to discover the trade secrets in the Software, or (c) to otherwise circumvent any technological measure that controls access to the Software. User may reverse engineer or otherwise circumvent the technological measures protecting the Software for the sole purpose of identifying and analyzing those elements that are necessary to achieve Interoperability (the Permitted Objective) only if: (i) doing so is necessary to achieve the Permitted Objective and it does not constitute infringement under Title 17 of the United States Code; (ii) such circumvention is confined to those parts of the Software and to such acts as are necessary to achieve the Permitted Objective; (iii) the information to be gained thereby has not already been made readily available to User or has not been provided by FOURTH ELEPHANT within a reasonable time after a written request by User to FOURTH ELEPHANT to provide such information; (iv) the information gained is not used for any purpose other than the Permitted Objective and is not disclosed to any other person except as may be necessary to achieve the Permitted Objective; and (v) the information obtained is not used (A) to create a computer program substantially similar in its expression to the Software including, but not limited to, expressions of the Software in other computer languages, or (B) for any other act restricted by FOURTH ELEPHANT's intellectual property rights in the Software. Interoperability shall have the same meaning in this Agreement as defined in the Digital Millennium Copyright Act, 17 U.S.C. §1201(f), the ability of computer programs to exchange information and of such programs mutually to use the information which has been exchanged.
2.6 License to the Government. If any Software or Documentation is acquired by or on behalf of a unit or agency of the United States Government, the Government agrees that such Software or Documentation is "commercial computer software" or "commercial computer software documentation" and that, absent a written agreement to the contrary, the Government's rights with respect to such Software or Documentation are, in the case of civilian agency use, Restricted Rights, as defined in FAR §52.227.19, and if for Department of Defense use, limited by the terms of this Agreement, pursuant to DFARS §227.7202.
3. PROPRIETARY RIGHTS. FOURTH ELEPHANT retains all rights, title and interest in the Software and User shall not take any action inconsistent with such title and ownership. User shall not alter or remove any printed or on-screen copyright, trade secret, proprietary or other legal notices contained on or in copies of any Software or Documentation. User acknowledges and agrees that the Software may contain code or require devices that detect or prevent unauthorized use of the Software.
4. CONFIDENTIAL INFORMATION. Except for the specific rights granted by this Agreement, User shall not use or disclose any Confidential Information without the written consent of FOURTH ELEPHANT. User shall use the highest commercially reasonable degree of care to protect the Confidential Information, including ensuring that its employees or consultants with access to such Confidential Information have agreed in writing not to disclose the Confidential Information. User shall bear the responsibility for any breaches of confidentiality by its employees and consultants. Within fifteen (15) days after request by FOURTH ELEPHANT, User shall either return to FOURTH ELEPHANT all originals and copies of any Confidential Information and all information, records and materials developed therefrom by User, or destroy the same. User may only disclose the general nature, but not the specific financial terms, of this Agreement without the prior written consent of FOURTH ELEPHANT. Nothing herein shall prevent User from disclosing all or part of the Confidential Information as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law; provided that prior to any such disclosure, User shall use reasonable efforts to (i) promptly notify FOURTH ELEPHANT in writing of such requirement to disclose, and (ii) cooperate fully with FOURTH ELEPHANT in protecting against any such disclosure or obtaining a protective order. Money damages will not be an adequate remedy if this Section 4 or Sections 2 or 3 are breached and, therefore, FOURTH ELEPHANT shall, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting any bond.
5. PAYMENTS. User shall pay all Fees, in accordance with the terms set forth on the applicable invoice provided to User by FOURTH ELEPHANT.
6. INDEPENDENT AUDIT. FOURTH ELEPHANT shall have the right upon reasonable advance written notice, to have an independent auditor verify User's compliance with this Agreement. User shall make all applicable books and records available for such inspection during normal business hours at User's principal place of business. Any such audit shall be at the expense of FOURTH ELEPHANT, unless such audit discloses an underpayment by the User for the audited period in excess of five percent (5%), in which case User shall reimburse FOURTH ELEPHANT for such expenses. If the audit discloses any underpayment by User, User shall promptly make payment to FOURTH ELEPHANT of such underpayment, together with interest.
7. SUPPORT & UPGRADES. FOURTH ELEPHANT's current support policy (as amended from time to time by FOURTH ELEPHANT, the Support Policy) is provided to the User on User's request. User may elect to obtain support services at FOURTH ELEPHANT's current price and may, pursuant to the Support Policy, elect to renew support at such prices and upon such terms and conditions as FOURTH ELEPHANT may publish from time to time. The Support Policy terms shall govern the support arrangements, supplemented by the terms of this Agreement. Any revisions to the Software delivered by way of support services shall be treated for all purposes under this Agreement as Software and all intellectual property rights therein shall be retained by FOURTH ELEPHANT. If FOURTH ELEPHANT elects to make revisions or updates to the Software available to User, such revisions and updates shall be provided solely in accordance with the Support Policy. FOURTH ELEPHANT shall have no obligation to revise or update the Software; or to support any version of the Software other than the then current version and the immediately previous Release, as defined in the Support Policy.
8. TERM AND TERMINATION. This Agreement shall commence upon the installation of the Software by User, and may only be terminated as provided herein. This Agreement may be terminated: (a) by User, upon notice to FOURTH ELEPHANT; (b) by FOURTH ELEPHANT immediately upon User's breach of Sections 2 or 4, or (c) by either party, in the event the other party materially breaches a provision of this Agreement and the breaching party fails to cure such breach within thirty (30) days of the receipt of notice of such breach from the non-breaching party. If User terminates this Agreement pursuant to Section 8(a) or if FOURTH ELEPHANT terminates this Agreement pursuant to Section 8(b) or (c), then User shall pay all amounts due hereunder. If User terminates this Agreement pursuant to Section 8(c), then FOURTH ELEPHANT shall reimburse User for the amount of pre-paid support fees, if any, pro-rated as of the termination date. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except as follows: (1) User's liability for any charges, payments or expenses due to FOURTH ELEPHANT that accrued prior to the termination date shall not be extinguished by termination, and such amounts (if not otherwise due on an earlier date) shall be immediately due and payable on the termination date; (2) User shall have no further right to use the Software and immediately after the termination or expiration date hereof, the User shall deliver to FOURTH ELEPHANT, at User's expense, all originals and copies of the (i) Software, (ii) Documentation and (iii) Confidential Information in the possession or under the control of User, and User shall certify in writing to FOURTH ELEPHANT within ten (10) days following termination that it has complied with this Section 8(2); and (3) the provisions of Sections 3 (Proprietary Rights), 4 (Confidential Information), 9 (Warranty), 10 (Infringement Indemnification), 11 (Limitation of Liability), 12 (Compliance with Laws), 13 (General Provisions) and this Section 8 shall survive any termination or expiration of this Agreement.
9. DISCLAIMER OF WARRANTY. THE SOFTWARE IS NOT ERROR-FREE AND IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. FOURTH ELEPHANT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE FOURTH ELEPHANT SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. FOURTH ELEPHANT DOES NOT WARRANT THAT ANY LOST COMPUTER OR THE DATA STORED THEREON WILL BE RECOVERED BY USE OF THE SOFTWARE.
10. INFRINGEMENT INDEMNIFICATION. Except as provided below, FOURTH ELEPHANT shall defend and indemnify User from and against any damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of any claim that the Software or Documentation infringes a valid U.S. patent or copyright or misappropriates a trade secret of a third party, provided that (i) User shall have promptly provided FOURTH ELEPHANT written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) FOURTH ELEPHANT shall have sole control and authority with respect to the defense, settlement, or compromise thereof. If any Software or Documentation becomes or, in FOURTH ELEPHANT's opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, FOURTH ELEPHANT may, at its option, (1) procure for the User the right to continue using such Software or Documentation, (2) replace or modify such Software or Documentation so that it becomes non-infringing without substantially compromising its functionality, or, if (1) and (2) are not reasonably available to FOURTH ELEPHANT, then (3) terminate User's license to the allegedly infringing Software or Documentation and pay to User an amount not to exceed the depreciated value of the Software or Documentation for which User has paid a license fee, depreciated on a straight line basis over a three (3) year period. FOURTH ELEPHANT shall have no liability or obligation to User hereunder with respect to any patent, copyright or trade secret infringement claim based upon (a) use of the Software in an application or environment or on a platform or with devices for which the Software was not designed or contemplated, (b) modifications, alterations, combinations or enhancements of the Software or Documentation not created by FOURTH ELEPHANT, or (c) any patent, copyright or trade secret in which User or any affiliate of User has an interest. User shall indemnify and hold FOURTH ELEPHANT harmless from all costs, damages and expenses (including reasonable attorneys' fees) arising from any claim enumerated in clauses (a) through (c) above. The foregoing states the entire liability of FOURTH ELEPHANT with respect to infringement of patents, copyrights and trade secrets by the Software or Documentation or any part thereof or by their operation. User will immediately inform FOURTH ELEPHANT as soon as User becomes aware of any threatened or actual liability claim by a third party relating to the Software or Documentation.
11. LIMITATION OF LIABILITY. EXCEPT FOR FOURTH ELEPHANT'S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION) HEREOF, FOURTH ELEPHANT'S LIABILITY FOR DAMAGES TO USER OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED THE AGGREGATE FEES PAID BY USER FOR THE TWELVE (12) MONTHS PRIOR TO THE CLAIM. FOURTH ELEPHANT SHALL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF THE SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE FOURTH ELEPHANT SOFTWARE OR SERVICE WITHOUT REGARD TO WHETHER FOURTH ELEPHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
12. COMPLIANCE WITH LAWS. User is only being granted the rights to use the Software and Documentation and shall not export or re-export, directly or indirectly (including via remote access), Software, Documentation or other information or materials provided by FOURTH ELEPHANT hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. It shall be User's responsibility to comply with the latest United States export regulations, and User shall defend and indemnify FOURTH ELEPHANT from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) arising out of any claim that Software, Documentation, or other information or materials provided by FOURTH ELEPHANT hereunder were exported or otherwise accessed, shipped or transported in violation of applicable laws and regulations. User shall comply with all laws, legislation, rules, regulations, and governmental requirements with respect to the Software, and the performance by User of its obligations hereunder, of any jurisdiction in or from which User directly or indirectly causes the Software to be used or accessed. In the event that this Agreement is required to be registered with any governmental authority, User shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
13. GENERAL PROVISIONS.
13.1 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance shall be extended for the period of delay or inability to perform due to such occurrence.
13.2 Publicity. User shall not originate any publicity, news release or other public announcement relating to the Software, this Agreement, its terms or the existence of an arrangement between the parties without the prior written approval of FOURTH ELEPHANT, except as otherwise required by law.
13.3 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
13.4 No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
13.5 Governing Law; Jurisdiction & Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its choice of law provisions. In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Exclusive jurisdiction and venue for any litigation arising under this Agreement is in the federal and state courts located in Suffolk County, Massachusetts, USA and both parties hereby consent to such jurisdiction and venue for this purpose.
13.6 Entire Agreement; Amendment. This Agreement and the Support Policy (if applicable) constitute the entire agreement between the parties with regard to the subject matter hereof. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. Terms set forth in any purchase order of User (or other similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by User. All such terms are considered by FOURTH ELEPHANT to be proposed material alterations of this license and are rejected. User's purchase order is only effective as User's unqualified commitment to pay for a license to the FOURTH ELEPHANT Software upon the terms (and only the terms) set forth herein.
13.7 Costs, Expenses and Attorneys' Fees. User shall reimburse FOURTH ELEPHANT for all reasonable costs (including attorneys' fees) incurred by FOURTH ELEPHANT in collecting late payments from User. If either party commences any action or proceeding against the other party to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party the actual costs, expenses and attorneys' fees (including all related costs and expenses), incurred by such prevailing party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
13.8 Assignment. This Agreement and the rights and obligations hereunder, may not be assigned in whole or in part by User without the prior written consent of FOURTH ELEPHANT and any unauthorized assignment or transfer shall be null and void. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto. FOURTH ELEPHANT may assign this Agreement.
13.9 Notices. Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via facsimile or certified mail, postage prepaid and return receipt requested, addressed to such other party at the address specified below or at such other address as such party may from time to time designate in a notice to the other party. All notices shall be in English and shall be effective upon receipt.
13.10 In English. The parties confirm that this Agreement and all related documentation are and will be drafted in English. Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés en langue Anglaise.
13.11 Captions and Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
13.12 Acknowledgment. User acknowledges that (a) it has read and understands this Agreement; (b) it has had an opportunity to have its legal counsel review this Agreement; (c) that this Agreement has the same force and effect as a signed agreement; (d) FOURTH ELEPHANT requires identification of the User before issuing this license; (e) issuance of this license does not constitute general publication of the Software, the Documentation or other Confidential Information; and (f) the individual accepting this Agreement on behalf of a corporation or other legal entity personally represents that he or she is duly authorized to accept this Agreement on behalf of such entity and that this Agreement is binding upon such entity.
If you have any questions regarding the terms of this Agreement, please send electronic mail to: legal@fourthelephant.com