Products License Agreement

IMPORTANT! READ THIS LICENSE AGREEMENT (HEREAFTER “AGREEMENT”) BEFORE BREAKING THE SEAL ON THE PROGRAM MEDIA PACKAGE, CLICKING ON THE “ACCEPT” BUTTON, ENTERING “YES” IN RESPONSE TO THE ELECTRONIC LICENSE ACCEPTANCE INQUIRY, INSTALLING, OR ELECTRONICALLY DOWNLOADING. ANY OF THE ABOVE ACTIONS INDICATE ACCEPTANCE OF, AND LEGALLY BINDS YOU AND/OR YOUR COMPANY (“LICENSEE”), AND RATIONAL SOFTWARE CORPORATION, INCLUDING ITS SUBSIDIARIES (“RATIONAL”) TO, THE TERMS AND CONDITIONS SET FORTH BELOW. IF LICENSEE DESIRES TO NEGOTIATE NEW OR DIFFERENT TERMS, CONTACT RATIONAL'S CONTRACTS DEPARTMENT AT +1-408-496-3600 BEFORE TAKING ANY OF THE ABOVE ACTIONS. IN THE EVENT LICENSEE CONTACTS RATIONAL BUT WE ARE UNABLE TO NEGOTIATE AN ACCEPTABLE SOLUTION, RATIONAL WILL REFUND THE PRICE OF LICENSEE’S LICENSE FEE UPON THE RETURN OF THE UNOPENED MEDIA PACKAGE AND ACCOMPANYING DOCUMENTATION TO: Rational Software Corporation, Contracts & Legal Services Department, 2800 San Tomas Expressway, Santa Clara, California 95051-0951

1.0 GENERAL GRANT OF LICENSE. Rational hereby grants to Licensee a nonexclusive license to use solely for Licensee’s internal business purposes, the enclosed software program(s) (including any link-time and run-time modules), any hardware key that may be furnished, user documentation, and/or development process documentation (including, but not limited to documentation on computer readable media), collectively ("Product") in the countries for which the applicable license fees were paid. Licensee may also use any enclosed documentation solely to support such use of the Product. The Product may only be installed on the equipment at the Ship To location or within a seventy-five (75) mile (120 km) radius of the Ship To location ("Site") for which the applicable license fees have been paid, which is limited to a single, designated host (unless otherwise specified by Rational in writing). Licensee may not rent, lease or use the Product in a service bureau capacity. Provided that Licensee has a current Customer Support Services (CSS) contract in place, (1) any UNIX product may be transferred in its entirety from one designated host to a different UNIX designated host platform within the same Site, and/or (2) any Windows Product may be transferred in its entirety from one designated host to a different Windows designated host platform within the same Site; provided, however, that with any such transfer in no event shall the total number of licenses in use exceed the total number of licenses for which the license fees have been paid. Licensee may deinstall, move and reinstall the Product on different equipment at the same Site with advance notice to Rational, however Licensee may not move the Product outside the Site unless applicable transfer license fees have been paid. The Product shall not be accessed concurrently by more than the number of authorized users, including users accessing the Product via a Web browser, for which the applicable license fees have been paid. Nor shall the Product be accessed by a network user who is located outside of the Site. The individual Products that are licensed as part of a multi-product bundle or as a multi-product suite, may not be used simultaneously by different users. Each of the products that are part of a multi-product bundle or multi-product suite, may be used only by one user at a time. For each separate Product which is included as a component of a Rational Suite Product, that separate Product shall be subject to all licensing properties related to Rational Suites. Licensee may not assign or otherwise transfer this license except upon notice, either (a) in connection with a sale of all or substantially all Licensee’s business assets, or (b) pursuant to a U. S. Government program awarded to Licensee if the Product is assigned to the U.S. Government as residual property at the end of a contract, but not under an indefinite delivery, indefinite quantity ("IDIQ") contract or similar procurement vehicle. Any such assignment of residual property shall be subject to the terms and conditions stated herein. After any such assignment, assigning Licensee shall have no rights with regard to the Rational Products licensed hereunder. Licensee shall inform all users of the Product of the terms and conditions of this Rational Software Corporation Products License Agreement. Title to and full ownership of all copies of the Product remain with Rational or Rational's licensors and are protected by United States copyright laws, patent laws, and various international treaties.

1.1 FLOATING AND RATIONAL PROCESS LICENSES. With regard to floating licenses, multiple designated hosts are permitted within the same Site, provided simultaneous use occurs within that Site via a common license server(s) and does not exceed the total number of licenses. With regard to Rational Process licenses, the number of authorized users shall be the total number of project members on all projects following the process at a given Site. A license fee must be paid to cover each and every member of each project using the Rational Process.

1.2 SIMPLE USER LICENSES. If the license is a simple user license, then each Product license grants Licensee the right to use the Product as per Section 1.0 on multiple designated hosts within the Site. If Licensee is a corporation or other entity, one designated individual within that organization shall be the designated user for each simple user license purchased. Each person accessing the Product must be the designated user pursuant to a respective license for the Product.

1.3 PORTABLE COMPUTER USAGE (e.g., laptop). When a node-locked Product is installed on a portable computer as the authorized designated host, the Site and country limitations shall not apply, provided that the Product shall not be transferred to any designated host outside the Site.

2. 0 AUTHORIZATION CODES. Many Rational Products require periodic authorization codes based on the serial number or host I.D. of the installation computer and the number of authorized concurrent users. These codes require Rational to enable such Product for use on a particular installation computer. The Product may contain such codes and may be disabled if installed on a computer with a different serial number or if used by more than the authorized number of concurrent users.

3.0 COPIES. Unless expressly authorized by Rational in writing, Licensee may not copy or modify the Product (or any derivative work, if applicable) except (a) source code of reusable components of the Rational Compilation Integrator may be copied for use on any remote compilation platform only, (b) in connection with the use licensed in Section 1 above, (c) to create derivative works pursuant to Section 11.5, or pursuant to Section 11.6, (d) to create a derivative work of the computer readable documentation or (e) as reasonably required for back-up or archival purposes, provided, however, that each copy contains the proper copyright, patent, proprietary rights and confidentiality notices and restricted rights legends. Any such derivative work of computer readable documentation, as referenced in Section 3(d) above, shall contain material proprietary to Rational (or Rational’s licensor), and shall not be copied or distributed without the express written consent of Rational. Licensee may not copy documentation without the express written consent of Rational.

4.0 TERM AND TERMINATION. This license shall be valid from the date purchased by Licensee and is perpetual unless terminated by mutual consent, by Licensee’s election, or by Rational upon thirty (30) days written notice of Licensee’s unremedied material breach of this Agreement. In the event of any termination of this Agreement, Licensee will immediately return to Rational all copies of the Product and other Rational provided materials and certify to Rational that any and all copies of the Product have been erased from computer memory.

5.0 UPDATES AND SUPPORT. This Agreement does not grant Licensee rights to any improvements, modifications, enhancements, updates to the Product, or other support services. Such updates may be purchased separately from Rational in accordance with the Rational Software Corporation Customer Support Services Terms and Conditions, which is mandatory for the initial year for most Rational Products. The purchase of updates does not increase the number of authorized users for the Product. Use of such improvements, modifications, enhancements or updates to the Product shall be governed by the terms and conditions contained herein.

6.0 LIMITED WARRANTIES; YEAR 2000 READINESS DISCLOSURE; INDEMNIFICATION. Rational warrants the media on which the Product is furnished to Licensee to be free of defects in materials and workmanship and that the Product will substantially operate according to specifications published by Rational for a period of ninety (90) days from the date of purchase. The latest revisions of all of Rational’s currently available product family on Windows, Windows 95, Windows NT, and on supported variants of UNIX rely on standard mechanisms for all operations related to computing and storing the date and time, which encode the year such that the transition to the year 2000 is handled properly. In addition, the Product accurately processes date data (including, but not limited to calculating, comparing, and sequencing) from, into and between the twentieth and twenty-first centuries, including leap-year calculations, when used in accordance with the Product documentation provided. To the extent that the hardware and underlying operating system correctly handle the calendar shift from 1999 to 2000, Rational warrants that the latest revisions of all of Rational’s currently available product family on Windows, Windows 95, Windows NT, and on supported variants of UNIX platforms are free from the ‘Year 2000 problem’, and that all operations involving date and time will remain accurate when the calendar shifts from 1999 to 2000. Rational Products will remain Year 2000 compliant provided the Product remains under current Customer Support Services contract and the updates provided thereunder are applied to the Product. The exception to the above, is that the vendor of the SQLAnywhere database has not certified version 5.5.01 of this database as Year 2000 compliant. This database is used by SQA Suite: TeamTest Edition version 6.x and SQA Suite: LoadTest Edition version 6.x. While Rational has tested for Year 2000 compliance and is not aware of any problems or issues, it cannot certify these products as Year 2000 compliant when installed to use the SQLAnywhere repository database.

Rational shall, except as otherwise provided below, defend or settle any claim made or any suit or proceeding brought against Licensee so far as it is based on an allegation that any Product furnished hereunder infringes any patent, copyright, trademark, trade secret or other intellectual property right, if Rational is notified promptly in writing and given reasonable information and assistance, and Rational is given the sole authority to defend or settle same at Rational's expense. Rational shall pay all damages and costs (other than costs of Licensee’s retained counsel or the value of the services of Licensee’s employees) finally awarded therein against Licensee. In case said Product in such suit is held to infringe and the use of said Product is enjoined, or in the case of a settlement as referred to above, Licensee will permit Rational, at its own option and expense, to: (a) procure for Licensee the right to continue using said Product; (b) replace same with a noninfringing Product without degradation in performance; (c) modify said Product so it becomes noninfringing without degradation in performance; or, (d) if none of the foregoing is practicable in the reasonable judgment of Rational, Rational will refund the price paid for said Product. Rational shall have no liability for any infringement of patents, copyrights, or other intellectual property rights, trademarks or trade secret resulting from: compliance with Licensee’s designs, specifications, or instructions; modifications of said Product by any party other than Rational other than in accordance with Rational's instructions; or use of said Product other than as specified in relevant Rational publications.

Rational's sole liability and Licensee’s exclusive remedy for breach of any warranties shall be, at Rational's option, (a) to repair or replace Licensee’s defective media or Product or (b) to refund the license fee paid for the Product and cancel this Agreement. Any modification of the Product by any person other than a Rational representative or any use of the Product with infringing software or data will void this warranty.

Rational does not warrant that the functions contained in the Product will meet LICENSEE’S requirements or that the Product will be error-free. except as provided in this section 6.0, RATIONAL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MEDIA AND PRODUCT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN THE EVENT THAT THE TARGET RTS SOURCE CODE OF THE RATIONAL ROSE REALTIME PRODUCT IS MODIFIED BY LICENSEE (WHICH MODIFICATION SHALL INCLUDE, WITHOUT LIMITATION, THE CREATION OF OBJECT CODE), THE WARRANTIES AS PROVIDED IN THIS SECTION 6.0 ARE VOID AS TO SUCH SOURCE CODE, AND SUCH SOURCE CODE IS THEN PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. THE FOREGOING STATES RATIONAL'S AND ITS LICENSORS’ ENTIRE LIABILITY FOR COPYRIGHT, TRADE SECRET, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY PRODUCT FURNISHED HEREUNDER. IN NO EVENT SHALL RATIONAL OR ITS LICENSORS BE LIABLE TO LICENSEE OR A THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, LOST DATA AND THE LIKE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF RATIONAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. 0 LICENSEE RESPONSIBILITIES. Licensee agrees not to reproduce, deactivate or bypass the security devices, including any hardware key, supplied with the Product. Licensee agrees to preserve and respect all copyright, patent, proprietary rights and confidentiality notices and restricted rights legends included in the Product. Licensee agrees not to disassemble or reverse-compile the Product or any portion thereof. Licensee further agrees not to disclose, transfer, or otherwise provide to any third party any portion of the Product without the express written permission of Rational. Licensee hereby acknowledges that Licensee is aware of the fact that the Product contains professional and confidential know-how and, therefore, shall not be made available to third parties, except as specified herein.

Licensee will be responsible for all taxes including, but not limited to, sales, use, withholding, value-added and excise taxes assessed or levied by any jurisdiction arising out of the performance of this Agreement, except for taxes based on the net income of Rational.

8.0 EXPORT CONTROLS. The Product is subject to all applicable export laws in accordance with the U.S. Export Administration Regulations and Licensee hereby agrees that neither the technical data nor the direct product thereof is intended to be shipped, either directly or indirectly to any embargoed countries nor used for or in support of any prohibited activities.

9.0 GENERAL. This Agreement represents the complete and exclusive statement of the agreements concerning the license between the parties, supersedes all prior agreements and understandings, and may be modified only in writing signed by Licensee and Rational. The acceptance of any purchase order placed by Licensee is expressly made conditional on Licensee’s assent to fully comply with all applicable laws and regulations, the terms and conditions set forth herein, and any terms or conditions contained in Licensee’s purchase order or other writing pertaining to this license that are inconsistent with this Agreement are hereby rejected. If any provision of this Agreement is held to be unenforceable or illegal under certain circumstances for any reason, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions hereof and such provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. This Agreement shall be governed by and construed under California law.

10.0 U.S. GOVERNMENT RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in this Agreement and in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct 1988), FAR 12.212(a) 1995, FAR 52.227-19, or FAR 52.227-14, as applicable. Licensee and Licensee’s successors in interest agree that only rights to the Product set forth in this License are provided.

11.0 ADDITIONAL PRODUCT SPECIFIC TERMS

11.1 PERFORMIX LICENSES. With regard to Performix licenses, each license authorizes Licensee to use the Product on a computer designated by Licensee (“Primary Computer”), with those client/server protocols designated on the applicable order, for the purpose of testing Licensee’s software application by emulating use of the application limited to a number of users specified on the applicable order (“User Emulation User Limit”). The Primary Computer must be located at the Site identified in the applicable order or, if no Site is identified in the order, at the Site where the Software is delivered. Licensee may transfer license(s) from a Primary Computer to a new Primary Computer but the new Primary Computer must be binary compatible with, and located at the same Site as, the previous Primary Computer.

11.2 SQA LOADTEST AND SQA ROBOT LICENSES. With regard to the SQA LoadTest Product, Licensee may use this Product to concurrently test the authorized number of test workstations (“Agent Test Stations”) within the same Site, listed on the side of this package for hardware copy protected versions, as authorized by the hardware key. Licensee may test as many times as Licensee wishes and on whichever Agent Test Stations Licensee wishes, within the same Site, provided that in no event may any single test run exceed the number of Agent Test Stations. At Licensee’s request and at Rational’s election, Rational will use commercially reasonable efforts to make available to Licensee certain interface specifications in order that Licensee may develop Licensee’s own software interface to provide interoperability with Rational’s SQA LoadTest Product.

11.3 SOURCE CODE PRODUCTS. If source code is enclosed, Licensee may use it to create derivative works to be used in accordance with the foregoing license provisions. All copyright, patent, trademark and trade secret rights in and to the Product shall remain with its owner and shall continue in the portions of the Product incorporated into any derivative work. Licensee acknowledges that because the source code contains, and any derivative work will contain, material proprietary to Rational or Rational's licensors, Licensee shall not copy or distribute source code or any derivative work without the express written consent of Rational and, in some cases, payment of additional license fees. Licensee may make, modify and distribute copies of the Standard C++ Library, and other third party C++ Libraries, not exclusively distributed as target software (‘Libraries’), solely as incorporated into derivative works composed of the Libraries, provided that the Libraries do not constitute a major portion of the value of the derivative work. Notwithstanding any provisions in this Agreement to the contrary, Licensee may not distribute in any manner the header files, source code, object modules, executables, template-based classes, or independent static libraries of the Libraries.

11.4 RUNTIME COMPONENTS. Certain Rational Products include components in the form of runtime libraries, scripts, utilities, or add-ins (“Runtime Components”). Rational grants Licensee a non-exclusive license to use the Runtime Components only with Rational’s licensed Product, and to embed the Runtime Components in Licensee’s application produced with Rational’s licensed Product for Licensee’s end users. In such case, Licensee agrees that Licensee’s application shall contain the proper copyright, proprietary rights, and confidentiality notices and restricted rights legends set forth in the Product, and Licensee agrees to indemnify, hold harmless, and defend Rational and its suppliers from and against any claims or lawsuits, including attorney’s fees, that arise or result from the marketing, use or sublicensing of the Licensee’s application or Licensee’s distribution of such Runtime Components. The Runtime Component for a Performix product may only be used in conjunction with the licensed use of the Performix product running on the corresponding Primary Computer (see Performix Section 11.1). Rational’s cross-compiler Products include runtime libraries identified as user configuration directories (“Target Software”). Rational grants Licensee a license to reproduce and distribute one copy of this Target Software in object code form only and solely when bundled with or contained in Licensee’s software product and to use copies of Target Software internally; Licensee agrees to pay an additional license fee (“Target Fee”) for each copy of Licensee’s software sold, transferred, or placed into use by Licensee that contains Target Software. As to the Runtime Components of Rational Rose RealTime, Licensee is further granted a license to reproduce, and, except for any part of the Rational Rose RealTime Modeler Edition, distribute those Runtime Components in object code form to end users of Licensee’s application, but not for further distribution. Where Runtime Components of Rational Rose RealTime are embedded in Licensee’s application, Licensee further agrees that the distribution of Runtime Components by the Licensee shall be pursuant to an end user license agreement which protects Rational, its licensors and the Runtime Components to at least the same extent as this Agreement. Notwithstanding any provisions in this Agreement to the contrary, Licensee may not distribute in any manner the header files, source code, object modules, executables or any part of the Rational Rose RealTime Modeler Edition.

11.5 VISUAL TEST REDISTRIBUTABLE COMPONENTS. (a) Sample Code. Rational grants to Licensee a non-exclusive, royalty-free right to use and modify the source code version of those portions of the Visual Test Product which are identified in the Visual Test Product as the Sample Code (‘Sample Code’), provided Licensee complies with Section 11.5(c). Licensee may not distribute the Sample Code or any modified version of the Sample Code, in source code form: (b) Redistributable Files. Rational grants to Licensee a non-exclusive, royalty-free right to reproduce and distribute the object code version of any portion of the Visual Test Product, EXCEPT those portions designated in the Visual Test Product file NOREDIST.WRI (‘Redistributables’), provided Licensee complies with Section 11.5(c); (c) Redistribution Requirements. If Licensee redistribute the Redistributables and/or Sample Code (collectively, ‘Redistributable Components’): (i) Licensee agrees to distribute the Redistributable Components in object code form only in conjunction with and as a part of Licensee’s software application product compiled with Rational Visual Test; (ii) Licensee’s software products must add significant and/or primary value to the Redistributables; (iii) Licensee’s software product may not, in the reasonable opinion of Rational, compete with the Visual Test Product; (iv) Licensee agrees to not use Rational’s name, logo, or trademarks to market Licensee’s software product; (v) Licensee agrees to include a valid copyright notice on Licensee’s software product; (vi) Licensee agrees to display, if required in the Visual Test Product documentation, the designated patent notices on the packaging and in the README file of Licensee’s software product; and (vii) Licensee agrees to indemnify, hold harmless, and defend Rational and its suppliers from and against any claims or lawsuits, including attorney’s fees, that arise or result from the use or distribution of Licensee’s software product.

NOTE: The Rational Visual Test Product (VT) comprises software programs that are compatible with Intel-based hosts (running 16-bit or 32-bit Microsoft Windows or Windows NT), as well as non-Intel-based hosts (running Microsoft Windows NT). Licensee may, subject to the terms of this Agreement, install and use one copy of the VT provided for one type of host on a single computer.

11.6 CLEARCASE LICENSES. Licensee is prohibited from creating any software program which links, embeds or makes direct function calls to Product runtime components licensed to Rational by third parties.

11.7 PERFORMANCESTUDIO LICENSES. For each license of PerformanceStudio, Licensee receives a single GUI agent for playback of GUI test scripts and such additional GUI agents, if any are ordered. For each PerformanceStudio license, Licensee receives an unlimited number of virtual user playback agents to support the execution of the ordered number of virtual users to test the licensed protocols listed on the applicable order. Also, Licensee may make unlimited use of Rational Robot for virtual user script recording and shall use Rational Robot to develop only one GUI script at a time. Licensee is allowed to use the license to execute unlimited, simultaneous, single virtual user playback for script debugging, and one simultaneous, multi-virtual user run for testing purposes.