BULL SAS SOFTWARE LICENSE AGREEMENT
(THIS IS A LICENSE AND NOT A SALE)
IMPORTANT - READ CAREFULLY BEFORE INSTALLING SOFTWARE
Bull StoreWay® Calypso Release V9
(including Microsoft® SQL Server™ 2008 Enterprise Edition, SQL Server™ 2008 Express Edition and Windows Pre-Installation Environment)
THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN BULL SAS AND THE CUSTOMER OF THE SOFTWARE. BY CLICKING THE "YES" BOX OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE CUSTOMER (THE ENTITY ON WHOSE BEHALF YOU REPRESENT YOU ARE AUTHORIZED TO ACT, IN WHICH EVENT "YOU" AND "YOUR" SHALL REFER TO YOU AND SUCH ENTITY, AS THE CASE MAY BE). YOU MAY USE THE SOFTWARE ONLY IN ACCORDANCE WITH THIS LICENSE AGREEMENT (UNLESS YOU HAVE A SIGNED LICENSE AGREEMENT WITH BULL SAS).
IF YOU PURCHASED THE SOFTWARE FROM AN AUTHORIZED RESELLER OF BULL SAS, YOU UNDERSTAND THAT SUCH RESELLER IS NOT BULL SAS' AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON BULL SAS' BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.
0. DEFINITIONS.
"Documentation" means the publications prepared and delivered to You by Bull SAS that accompanies the Software, such as reference, user, installation, systems administrator and technical guides.
"Software" means those items of software, in object code form only, proprietary to Bull SAS and/or its suppliers that You have ordered from Bull SAS in the accompanying package or Your accepted order(s) and supplied together with this Agreement and any patch, update, modification or other enhancement thereto, when and if available, provided to You by Bull SAS.
1. LICENSE TERMS. Bull SAS grants to You and You agree to accept a non-exclusive and non-transferable (except as otherwise expressly stated in this Agreement) right and license to use the object code version only of the Software that You have purchased in accordance with the applicable license and terms and conditions detailed below. All rights not specifically granted to You in this Agreement are retained by Bull SAS and its licensors.
The following products are covered by this Agreement:
Calypso Backup, Calypso DataArchiver, Calypso DataMigrator, Calypso QuickRecovery, Calypso CDR, Calypso 1-Touch and Calypso Monitor.
2. SUPPORT SERVICES. The support services should be separately purchased to have access to product updates and technical telephone support. Neither Bull SAS, nor its licensors, are obligated to provide, or to continue, support services and such support services may be discontinued at any time. If support services are provided, they shall be provided in accordance with Bull SAS’ then current policies, as such may be amended from time to time. In the event You elect to purchase support services, You must purchase such support services for all of the licensed Software in Your entire environment. Support shall begin on the date Software is shipped to You. You agree that Bull SAS and/or its licensors may, for business purposes, collect, process, and use technical information gathered as part of any product support services provided to You related to the Software and any other technical information You provide to Bull SAS provided that such information does not personally identify You.
3. RESTRICTIONS AND OTHER CONDITIONS.
(a) You may not copy the Software except as expressly allowed under Sections 1 and 3(e) of this Agreement.
(b) You may not modify, enhance, reverse engineer, decompile, disassemble, supplement, create derivative work from, adapt, translate or otherwise reduce the Software to human readable form (except as specifically permitted in the Documentation) including for reasons of error correction or interoperability.
(c) You may not provide commercial hosting services, rent or lease the Software nor allow use of the Software for service bureau, timesharing, subscription service or any other form of shared use.
(d) Except as otherwise expressly permitted in this Agreement, You may not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Software or its Documentation by any means or in any form to any third party including, without limitation, any form of distributor or reseller without a signed agreement with Bull SAS granting such right(s).
(e) You may: (i) use the Software, with the same or lower version number identified herein, in numbers equal to the number of licenses purchased for all items, or in the event that You are licensing the Software on a capacity basis, up to the maximum capacity purchased; (ii) make copies of the Software, Documentation or other user information accompanying the Software solely for back-up purposes, provided such back-up copies are only utilized as a replacement for the original copy on the same computer that the Software was previously installed; and, (iii) make a copy or print Documentation provided in electronic form for your internal use only, and You may use the trademarks solely for those purposes, but You must incorporate all patent, copyright, trademark and other notices included on the materials on any copies or partial copies that You make.
(f) The Software may not be transferred, sold, assigned or otherwise conveyed (whether by operation of law or otherwise) to any third party or outside the country in which it was originally delivered to You without Bull SAS' prior written consent. You shall in all events comply with all applicable export and re-export regulations and restrictions, including the export control laws of the United States of America. You agree to comply strictly with all such regulations and acknowledge that You have the responsibility to obtain licenses to export, re-export, or import Software.
(g) Results of benchmark or other performance tests run on the Software may not be disclosed to any third party without Bull SAS' prior written consent.
(h) Third party software products supplied with the Software i) are provided to You subject to the then current third party's license policy or agreement with Bull SAS, and ii) may only be used as a part of the Bull SAS Software. The Software may contain certain software licensed by Microsoft. You warrant that You are not licensing Microsoft products under this Agreement and that any copies of Microsoft software that You receive as a result of licensing the Software do not entitle You to maintain on Your computer systems any more copies of Microsoft software than You may have previously licensed from Microsoft or other third parties. Microsoft is an intended third party beneficiary of this Agreement with the right to enforce warranties and any other provision of the EULA and to verify Your compliance with same.
(i) Unless this software is provided to You for beta, demonstration, test, or evaluation purposes or is labeled “Not for Resale” as further described herein, You agree to use the Software solely for Your internal data center operations and to restrict any access to the Software, documentation, or other user information accompanying the Software only to those of your employees having a demonstrable need to have such access for your internal data processing operations. You agree that you shall not permit any access to the Software, documentation, or other user information accompanying the Software to any person engaged in product research, development, support, sales, marketing, or other functions not directly related to your internal data processing operations. You also agree not to use the Software, documentation, or user information accompanying the Software to assist, directly or indirectly, in the development or design of any computer hardware or software program including, but not limited to, a program that provides or is intended to provide or include a similar feature or functionality as the Software.
(j) In the event You use the Software for demonstration, evaluation or trial purposes, (i) the licenses granted herein shall be for a term of thirty (30) days (the “Evaluation Period”) unless otherwise agreed to in writing by Bull SAS, and Bull SAS reserves the right to terminate this Agreement or any licenses granted hereunder immediately upon written notice at its convenience; (ii) Your use of the Software is limited to use for demonstration, evaluation or trial purposes, and You may not resell or otherwise transfer the Software; (iii) You agree to keep confidential and not to disclose or otherwise make publicly available any information related to the Software, including, but not limited to test results, characteristics, and performance of the software; (iv) You agree not to copy the Software and not to provide a copy of the Software to any other party; (v) You agree not to use the Software in a production environment or for production data processing purposes, and that any use of the Software in a production environment or for production data processing purposes is at Your sole risk to backup data and take other appropriate measures to protect Your computer programs and data; and (vi) You agree to immediately, on or before the end of the Evaluation Period, promptly remove, destroy, and erase from computer memory and storage media any installed copy of the Software, and return the Software to Bull SAS together with all documentation and other materials provided by Bull SAS duration licenses, site licenses, evaluation, demonstration or trial Software products are delivered “AS IS” without a warranty of any kind. Bull SAS shall have no obligation to support, maintain, or provide other assistance regarding any limited duration licenses, site licenses, beta, evaluation, test, or demonstration Software products. IF THE SOFTWARE IS PROVIDED TO YOU FOR DEMONSTRATION, EVALUATION OR TRIAL PURPOSES OR IS LABELED “NOT FOR RESALE,” IN NO EVENT WILL BULL SAS BE LIABLE FOR ANY DAMAGES FOR ANY CAUSE OR FOR ANY CLAIM BY BORROWER OR FOR ANY THIRD PARTY CLAIM, INCLUDING BUT NOT LIMITED TO ANY DIRECT DAMAGES, ACTUAL DAMAGES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF BULL SAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(k) In the event You license the Software on a capacity basis, if you exceed the maximum capacity purchased, the Software may cease to operate normally and/or performance may be impaired; provided however that reducing Your usage to the purchased capacity level or purchasing additional capacity will return the Software to its normal operation. Any excess capacity usage above the purchased maximum shall entitle Bull SAS to invoice You for licensed capacity and maintenance and support amounts owed, and if You fail to pay for the excess usage, Bull SAS shall be entitled to any self-help or other remedies available. You shall provide Bull SAS with any usage reports immediately upon request (and You shall not interfere with any automated reporting features) in order to enable Bull SAS to verify Your capacity usage.
4. AUDIT. At the request of Bull SAS You will give Bull SAS reasonable access to Your records and systems or provide Bull SAS with a written report, including the name and type license, to verify the Software is being used pursuant to the terms of this Agreement. Nothing in this section shall be deemed to limit any legal or equitable remedies available to Bull SAS for a violation of this Agreement.
5. COPYRIGHT AND OWNERSHIP. Title to the Software and its Documentation, and patents, copyrights and all other property rights applicable thereto, shall at all times remain solely and exclusively with Bull SAS and/or its licensors, and You shall not take any action inconsistent with such title. No rights are granted to You other than a license to use the Software upon the terms expressly set forth in this Agreement. Such licensors, in addition to any other rights or remedies available to them, are third party beneficiaries of this Agreement for their respective software and may have the right to enforce such terms against You. The structure, sequence, organization and source code of the Software are valuable trade secrets of Bull SAS and/or its licensors. The Software is protected by copyright laws and international treaty provisions. You shall not remove any patent, copyright, or trademark notices or other proprietary notices from the Software or its Documentation, and You must reproduce such notices on all copies or extracts of the Software or its Documentation. You do not acquire any rights of ownership in the Software.
6. U.S. GOVERNMENT RIGHTS. If the Software or its Documentation is acquired by or on behalf of the United States Government, the Government agrees that such Software and Documentation is "commercial computer software" and "commercial computer software documentation" and that use, modification, duplication and disclosure of the Software and its Documentation by the U.S. Government is subject to restrictions set forth in this Agreement or in a written agreement to the contrary specifying the Government's right to use the Software and its Documentation, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Bull SAS reserves all unpublished rights under U.S. copyright laws.
7. TERM OF LICENSE. This license shall continue so long as You use the Software in compliance with this Agreement. Should You breach any of its obligations, this license shall terminate and You agree to destroy or return all copies of the Software and all materials provided for or with the Software upon notification and demand by Bull SAS.
8. LIMITED WARRANTY. For the period of thirty (30) days from the date of Your receipt of the Software, Bull SAS warrants that the Software, when properly used, will operate in all material respects in conformity with its Documentation when operated in its specified environment, and the Software CD-ROM media shall be free of defects. This warranty does not apply insofar as: (a) the Software is subjected to misuse, neglect, accident, or exposure to environmental conditions beyond those specified in the Documentation; (b) claims resulting from acts or omissions caused by persons other than Bull SAS or from products, material or software not provided by Bull SAS; (c) a version of the Software is used that does not include all updates available from Bull SAS; (d) the Software is modified or; (e) the Software is used on an operating system other than the system and version specified in the Documentation or on a machine not described in the Documentation. Bull SAS warrants that Software telephone support and training services ("Related Service(s)") will be performed by qualified personnel in a professional manner. In the event of non-conforming Software or Related Service(s), or if the media is defective, Your sole remedy and Bull SAS' exclusive responsibility shall be, as applicable and at Bull SAS' option, (i) replacement of the affected Software or media, or (ii) re-performance of the Related Service(s) at no additional charge, or (iii) a refund of the fees paid for the affected Software or Related Service(s) on a pro rata basis over a 60 month useful life. Some jurisdictions do not allow the exclusion or limitation of relief, incidental or consequential damages, so the above limitation or exclusion may not apply to You.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, THE SOFTWARE AND ANY THIRD PARTY SOFTWARE ARE PROVIDED TO YOU "AS IS" WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. BULL SAS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE, AND WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SOFTWARE, ITS DOCUMENTATION, SUPPORT OR OTHER SERVICES RELATED TO THE SOFTWARE. NO WARRANTY IS MADE REGARDING THE RESULTS OF SOFTWARE OR RELATED SERVICES OR THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, ERROR FREE OR LACK OF VIRUSES OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE'S FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE YOUR RESPONSIBILITY TO (i) REGULARLY BACK UP DATA MAINTAINED ON ANY COMPUTER SYSTEM USING THE SOFTWARE AND (ii) ADEQUATELY TEST PRIOR TO DEPLOYMENT EACH PRODUCTION VERSION OF THE SOFTWARE IN A CONFIGURATION WHICH REASONABLY SIMULATES YOUR PLANNED DEPLOYMENT OR PRODUCTION ENVIRONMENT. THE PROVISIONS SET FORTH ABOVE STATE BULL SAS’ AND ITS LICENSORS’ ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY WARRANTY. This limited warranty gives You specific legal rights. You may have other rights that vary among jurisdictions. Some jurisdictions do not allow the exclusion of implied conditions or warranties, statutory or otherwise, so the above exclusions may not apply to You.
9. LIMITATIONS ON LIABILITY. BULL SAS AND ITS LICENSOR SHALL NOT BE LIABLE FOR DIRECT DAMAGES ARISING FROM ANY SOFTWARE PRODUCT OR RELATED SERVICE BEYOND THE AMOUNT YOU PAID FOR SUCH SOFTWARE PRODUCT OR RELATED SERVICE. NEITHER BULL SAS, ITS SUBSIDIARIES NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER BULL SAS, ITS LICENSORS, NOR ANY OF ITS SUBSIDIARIES TOTAL LIABILITY, IF ANY, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SOFTWARE OR RELATED SERVICES SHALL EXCEED THE FEES PAID BY YOU FOR THE AFFECTED SOFTWARE OR RELATED SERVICE(S) GIVING RISE TO THE CLAIM. THE FOREGOING RESTRICTIONS, DISCLAIMERS AND LIMITATIONS SHALL REMAIN IN FORCE EVEN IN THE EVENT OF A FUNDAMENTAL BREACH BY BULL SAS OR A BREACH BY BULL SAS OF A CONDITION OR FUNDAMENTAL TERM HEREUNDER. Some jurisdictions do not allow the exclusion or limitation of indirect, special, incidental, consequential or exemplary damages or the limitation of liability to specified amounts, so the above limitations or exclusions may not apply to You.
10. GOVERNING LAW; COMPLETE AGREEMENT; SEVERABILITY; WAIVER. This Agreement shall be governed by, and construed in accordance with, the laws of the state of France without regard to its conflict of laws rules or the United Nations Convention on Contracts for the International Sale of Goods. This Agreement will be submitted to the exclusive jurisdiction of the Court of Paris (France). The terms of this Agreement supersede the terms of any purchase order or other document issued or signed by You to authorize Your purchase of the license of the Software or related services. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. The failure or delay of either party to exercise any of its rights shall not be deemed a waiver of such rights and no waiver of any breach of this Agreement shall constitute a waiver of any other breach.
Note on JAVA Support
THIS SOFTWARE PRODUCT MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
The following paragraph is applicable only to Calypso 1-Touch products containing Microsoft Windows Pre-Installation Environment (WinPE) software: (i) The license for the Calypso 1-Touch product is limited to its use as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not for use as a general purpose operating system or a fully functional version of any operating system product; (ii) the WinPE software is provided as is; (iii) the 1-Touch products, by virtue of the inclusion of WinPE, contain a security feature that will cause the computer system to reboot without prior notification to You after 24 hours of continuous use; (iv) neither Microsoft nor any Microsoft affiliate shall have any liability related to the 1-Touch or the WinPE products; and (v) all customer support issues will be handled solely by Bull SAS and/or its licensors.
The Software contains Data Files of IBM Lotus Domino (c) Copyright IBM Corporation 2007. All Rights Reserved.
DVD, MO and UDO recording software developed under license from PoINT Software & Systems GmbH- www.pointsoft.de.
This Software is covered by US Patent Numbers 5,559,991; 5,642,496; 6,418,478; 6,542,972; 6,658,436; 6,721,767; 6,760,723; 7,003,641; 7,035,880; 7,107,298; 7,130,970; 7,155,481; 7,162,496; 7,174,433; 7,209,972; 7,246,207; 7,277,941; 7,287,047; 7,315,923; 7,315,924; 7,343,356; 7,343,453; 7,343,459; 7,346,623; 7,346,751; 7,380,072; 7,389,311; 7,395,282; 7,401,154; 7,409,509; 7,434,219; 7,440,982; 7,447,692; 7,454,569; 7,457,790; 7,472,142; 7,472,238; 7,484,054; 7,490,207; 7,500,053; 7,529,782; 7,536,291; 7,539,707; 7,539,783; 7,543,125; 7,546,324; 7,568,080; 7,581,077; 7,584,227 and other patents and patents pending.