License Agreement

DO NOT INSTALL AND/OR USE THE SOFTWARE UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING:

This Software License (the “License”) sets forth the terms and conditions for licensing of the Software. Installation and/or use of the Software verifies that Licensee has read, understands, and accepts the terms and conditions of this License. If you are not either the Licensee or an authorized representative of Licensee, or if you do not agree with all the terms and conditions of this License, then do not install and/or use the Software, but immediately contact Bocada for further assistance.

1. DEFINITIONS

  1. “Certified Operating Environment” or “COE” means the operating system software, database products, backup software and any other software and/or hardware on which the Documentation specifies the Software will operate.
  2. “Licensee” means the purchaser / user of the Software.
  3. “Documentation” means the user documentation supplied by Bocada with the Software, in whatever form recorded.
  4. “License Term” means the term for which Licensee is authorized to use the Software.
  5. “Software” means the machine-readable object code copy of the software.
  6. “Unit” means any backup master server, any backup media server, or any client resource, either physical or virtual, for which the Software collects data.

2. LICENSE

  1. Software License. Subject to the payment of all applicable undisputed fees and contingent upon all other terms and conditions of this License, Bocada grants Licensee a worldwide, non-exclusive, non-transferable, royalty-free license to install the Software on Licensee’s COE, and use the licensed functionality of the Software during the License Term solely for Licensee’s own internal data reporting and analysis requirements. All intellectual property rights and title to the Software shall remain with Bocada, and no interest or ownership therein is conveyed to Licensee under this License.
  2. Software License Restrictions. Pursuant to the terms and conditions of this License including all rights and restrictions set forth herein, Licensee agrees to use the Software solely during the License Term and solely in conjunction with the COE as specified in the Documentation. Additionally, unless otherwise expressly provided for in this License, Licensee has no right to the source code and agrees that it shall not: (i) use the Software in a configuration that exceeds the number of Units Licensed for which the applicable fees have been paid; (ii) bypass restrictions on functionality and/or enable/use features not licensed; (iii) modify, adapt, or translate the Software or create derivative works there from; (iv) reverse compile (to ensure interoperability or for any other reason), reverse engineer or attempt any other source code derivation of the Software; (v) lease, loan, resell or otherwise distribute the Software to any third party; (vi) use the Software to provide marketing, training or consulting services to any third party; or (vii) permit access to or use of the Software by or on behalf of any third party with the exception of Licensee’s affiliates, subsidiaries or contractors, where such access and/or use shall solely be for the benefit of Licensee and in accordance with the terms and conditions of this License including all rights and restrictions set forth herein.
  3. Territory. The License granted hereunder shall be for the worldwide use of the Software; provided that Licensee shall not (i) directly or indirectly, export, re-export, transship, access or use the Software or its related technology in violation of any applicable U.S. export control laws and regulations or any other applicable export control laws of any country having jurisdiction over the parties or this transaction, or (ii) commit any act or omission or request Bocada to commit any act or omission that would violate the export control laws or regulations of the United States or other applicable export control laws, rules or regulations.
  4. Duplication of Software & Documentation. Notwithstanding the installation of the Software on the COE, Licensee may make a single copy of the Software solely for archival or backup purposes or for the purpose of disaster recovery testing. Licensee may make a reasonable number of copies of the Documentation solely for Licensee’s internal use. In the event that Licensee makes any such copies of the Software and/or Documentation, Licensee shall duplicate, without alteration, all copyright, trademark and related proprietary notices incorporated in or fixed to the Software and/or Documentation on all such copies.
  5. Initial License Purchase and Additional Licenses. During a License Term, Licensee may procure additional licenses to use the same Software, provided that additional licenses must be added in minimum quantities of fifty (50) Units through the remainder of the License Term.
  6. Third Party Software. The Bocada Software utilizes features from certain third party software (“TPS”). Licensee’s right to use all TPS is subject to the license terms outlined with respect to such TPS, including but not limited to those listed in Exhibit A incorporated herein by this reference, as modified by Bocada from time to time. The intellectual property rights and all copyrights in all TPS are retained by the respective TPS provider. SUCH TPS IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE COPYRIGHT HOLDERS, BOCADA, OR ANYONE DISTRIBUTING THE TPS BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE TPS OR THE USE OR OTHER DEALINGS IN THE TPS.
  7. Right to Audit. Licensee shall cooperate in good faith to confirm Licensee’s compliance with this License and all related orders in accordance with Exhibit B, incorporated herein by this reference.

3. WARRANTIES

  1. Licensee represents and warrants that its use of the Software will comply and conform with the terms and conditions of this License as well as all applicable federal, state and local laws.
  2. WITH THE EXCEPTION OF ANY CONDITION OR WARRANTY IMPLIED BY STATUTE WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT AND ANY WARRANTY EXPRESSLY SET FORTH IN THIS LICENSE, BOCADA MAKES NO WARRANTIES IN RELATION TO THE SOFTWARE OR DOCUMENTATION INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL OPERATE UNINTERUPTED OR ERROR FREE. NO WARRANTY IS MADE REGARDING THE RESULTS OF USAGE OF THE SOFTWARE OR THAT THE SOFTWARE’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS.
  3. THIS SECTION IN ITS ENTIRETY SHALL SURVIVE THE TERMINATION OF THIS LICENSE.

4. INDEMNIFICATION

  1. Infringement Indemnification by Bocada. During the term of this License, Bocada shall indemnify Licensee and its officers, directors, or employees (each, an “Indemnitee”) from and against, any claim, suit, or proceeding made or brought against any Indemnitee by a third party to the extent such claim, suit, or proceeding is based on an allegation that Licensee’s operation or possession of the latest Release of the Software in the form licensed to Licensee, infringes, violates, or misappropriates any (a) United States patent or United States copyright; or (b) any trade secret to the extent related to the Software (each, an “Infringement Claim”). Bocadashall further indemnify and hold the Indemnitee harmless from and against all reasonable costs of litigation (including, without limitation, reasonable attorneys' fees) in connection with such defense or settlement of any such Infringement Claim and any damages finally awarded with respect to any such Infringement Claim. If an actual or potential Infringement Claim for which Bocada is obligated to defend or settle or to indemnify Licensee pursuant to Section of this License is made or arises, then Bocada will, at Bocada’s option and discretion, at no additional cost to Licensee, take any one or combination of following measures: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software, or any part thereof, so that it is no longer subject to any such actual or potential Infringement Claim, provided that the Software shall continue to perform in material conformance with applicable Documentation; or (c) terminate Licensee’s License to the Software, or any part thereof, granted under this License and refund to Licensee an amount which represents the value of the unused portion of the License, such value to be determined by fully amortizing the License fee Licensee paid to Bocada based on a thirty-six (36) month useful life. The provisions of this section identify Licensee’s sole remedy and Bocada’s sole responsibilities with respect to any Infringement Claim.
  2. Indemnification by Licensee. Notwithstanding the foregoing, Bocada shall have no obligations under this Section and Licensee shall indemnify and save harmless Bocada from and against any losses, damages, liabilities, fines, penalties, and expenses (including reasonable attorneys’ fees) that arise out of or result from any and all Infringement Claims to the extent based on: (i) the use of any version of the Software other than a current, unaltered release, if such infringement could have been avoided by the use of a current, unaltered release and such release has been made available to Licensee by Bocada; (ii) the combination, operation or use of the Software with other software which was not provided or approved by a duly authorized representative of Bocada, if such infringement would have been avoided in the absence of such combination, operation or use; (iii) Licensee’s use of the Software in any manner inconsistent with the terms and conditions of this License, the Documentation, or the applicable order including, without limitation, the use of the Software on, or in conjunction with, an operating environment other than the COE; (iv) aspects of the Software that were created based upon information supplied by Licensee; (v) modifications to the Software that were made without express written directions from Bocada; (vi) a patent or copyright owned, controlled, licensable, or licensed by Licensee or any of its affiliates; (vii) any violation by Licensee of export regulations; or (viii) the result of Licensee’s gross negligence or wilful misconduct.
  3. This Section in its entirety shall survive termination of this License.

5. LIMITATION OF LIABILITY

  1. IN NO EVENT WILL BOCADA BE LIABLE TO THE LICENSEE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES RELATING TO OR ARISING FROM THIS LICENSE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, (i) THE LOSS OF USE, REVENUES, PROFITS, GOODWILL OR SAVINGS, (ii) THE LOSS, CORRUPTION OR INACCURACY OF DATA, DATA FILES OR PROGRAMS FOR ANY REASON INCLUDING ANY INFORMATION PRESENTED BY THE SOFTWARE, OR (iii) THE DISRUPTION OF NETWORKS, OPERATING SYSTEMS, HARDWARE OR OTHER SOFTWARE.
  2. BOCADA’S LIABILITY TO LICENSEE FOR DIRECT DAMAGES SHALL BE LIMITED TO THE LICENSE FEES PAID TO BOCADA FOR LICENSEE’S USE OF THE SOFTWARE.
  3. THIS SECTION IN ITS ENTIRETY SHALL SURVIVE THE TERMINATION OF THIS LICENSE.

6. TERMINATION

  1. Bocada may terminate any License upon written notice if the Licensee breaches a material term of this License. Unless otherwise expressly provided, termination for cause shall not limit either party from pursuing all available remedies under this License, at law or in equity.
  2. Termination for Convenience. Licensee may terminate this License at any time for convenience upon written notice. Upon such termination, all payments with respect to a License ordered pursuant hereto shall be immediately due and payable. For the avoidance of doubt, notwithstanding such termination, Licensee shall be responsible for payment through the end of the term applicable to the License.
  3. Obligations Upon Termination. Upon termination for any reason, Licensee must immediately cease using the Software, and must certify to Bocada in writing within five (5) days of termination that the Software is no longer in use. In addition, as quickly as practicable (and in any event within thirty (30) days of termination), Licensee must uninstall and destroy all copies of the Software and Documentation, and must certify to Bocada in writing that the Software and Documentation has been uninstalled and destroyed.

7. CONFIDENTIALITY

The Software and all related Documentation is Bocada proprietary information. Bocada does not grant any express or implied right to Licensee to or under any patents, copyrights, trademarks, or trade secret information of Bocada, and Bocada reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets. Licensee shall: (i) refrain from disclosing any Bocada proprietary information to any third party; (ii) take reasonable security precautions to guard the Bocada proprietary information against unauthorized disclosure, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care.

8. GENERAL TERMS & CONDITIONS

  1. Governing Law and Venue. This License shall be governed by the laws of the State of Washington. Any legal action or proceeding relating to this License shall be instituted in a state or federal court in King County, Washington. Bocada and Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, said courts. This Section shall survive termination of the License.
  2. Relationship of the Parties. The relationship between the parties shall only be that of independent contractors, and nothing in this License shall be construed to create a partnership, joint venture or agency relationship between the parties. Additionally, neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Each party shall be solely responsible for payment of all compensation owed to its employees as well as all employment-related taxes, and each party shall maintain appropriate worker’s compensation and general liability insurance for its employees.
  3. Assignment. Licensee shall not attempt to assign this License nor any right, obligation or Software Licensed hereunder without the prior written consent of Bocada. Without Bocada’s consent, any attempted assignment, transfer or conveyance of this License, in whole or in part, shall be void and of no effect.
  4. Severability. If any provision of this License is declared unlawful, void or unenforceable, then that provision shall be severed from this License and will not affect the validity and enforceability of any of the remaining provisions.
  5. Restricted Rights. If Licensee is an agency or instrumentality of the United States Government, the Software and related Documentation are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the use, reproduction and disclosure of the Software and its Documentation are governed by the terms of this License.
  6. Force Majeure. With the exception of all payment obligations hereunder, neither party shall be deemed in default of this License to the extent such party’s performance of any obligation is delayed or prevented as a result of a cause beyond its reasonable control which could not have been avoided by the exercise of due care; provided said party gives reasonably prompt notice of the force majeure condition and uses reasonable efforts to rectify said condition, to the extent that such notice and efforts to rectify said condition are feasible based on the type of force majeure situation.
  7. Dispute Resolution. Except as otherwise specifically provided in or permitted by this License, all disputes, differences of opinion or controversies arising in connection with this License shall first be resolved through good faith negotiation to arrive at an agreeable resolution. If, after negotiating in good faith for a period of ninety (90) calendar days, or any agreed further period, the parties are unable to resolve the dispute, then the parties may seek resolution by exercising any rights or remedies available to either party at law or in equity.

9. USE OF NAME

Bocada will not use Licensee’s name or logo in connection with any marketing, publicity, advertising, or promotional materials or activities without Licensee’s prior written consent; provided that Bocada shall have the right to publicly list Licensee as a customer on its web site, in its product brochure or in conversations with its clients or prospective clients.

EXHIBIT A: Third Party Software

Products: Bocada Prism and Bocada Vision © 2011 Bocada, Inc.

  • Portions of Bocada Prism and Bocada Vision may be covered by one or more of the following US Patents: 6,640,217, 6,708,188, 6,745,210, 7,457,833, 7,469,264, 7,496,614.

This Bocada Product includes third party software packages, provided “as is” without express or implied warranty of any kind. Your right to use such third party software is subject to the license terms outlined with respect to such software, including but not limited to those listed below and at bocada.com, as modified from time to time. These licenses only apply to the specific parts of the software provided by such third parties. The intellectual property rights and all copyrights in all third party packages are retained by the respective third party software vendors.

Apache Xerces

  • http://www.apache.org/licenses/
  • Portions of the Bocada Product were created by The Apache Software Foundation (http://www.apache.org/).
  • Portions of this software were originally based on the following: software copyright (c) 1999, IBM Corporation., http://www.ibm.com.

Boost Regular Expression Library

  • http://www.boost.org/LICENSE_1_0.txt
  • Portions of the Bocada Product were created using the Boost Regular Expression Library. Copyright 1998-2000. Dr. John Maddock
  • Permission to use, copy, modify, distribute and sell this software and its documentation for any purpose is hereby granted without fee, provided that the above copyright notice appear in all copies and that both that copyright notice and this permission notice appear in supporting documentation.

MD5 Message-Digest Algorithm

  • http://userpages.umbc.edu/~mabzug1/cs/md5/md5.html
  • Portions of the Bocada Product were created or derived from the RSA Data Security, Inc. MD5 Message-Digest Algorithm. Copyright (C) 1991-2, RSA Data Security, Inc. Created 1991. All rights reserved. RSA Data Security, Inc. makes no representations concerning either the merchantability of this software or the suitability of this software for any particular purpose. It is provided “as is” without express or implied warranty of any kind.

Boost Software

  • http://www.boost.org/LICENSE_1_0.txt
  • Boost Software License - Version 1.0 - August 17th, 2003
  • Permission is hereby granted, free of charge, to any person or organization obtaining a copy of the software and accompanying documentation covered by this license (the “Software”) to use, reproduce, display, distribute, execute, and transmit the Software, and to prepare derivative works of the Software, and to permit third-parties to whom the Software is furnished to do so, all subject to the following:
    • The copyright notices in the Software and this entire statement, including the above license grant, this restriction and the following disclaimer, must be included in all copies of the Software, in whole or in part, and all derivative works of the Software, unless such copies or derivative works are solely in the form of machine-executable object code generated by a source language processor.
    • THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR ANYONE DISTRIBUTING THE SOFTWARE BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

DBLINQ Software

  • http://dblinq2007.googlecode.com/svn/trunk/LICENSE.X11
  • Copyright (c) 2007-2009 the individuals listed in svn commit entries and within the source files.
  • Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
    • The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
    • THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

Delphi Jedi Code Library Software

  • http://www.mozilla.org/MPL/MPL-1.1.html
  • Mozilla Public License version 1.1
  • Software distributed under the Mozilla Public License is distributed on an “AS IS” basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.
  • The Source Code version of the Covered Code is available under the terms of this License from http://jcl.delphi-jedi.org.

iTextSharpSoftware

  • http://www.mozilla.org/MPL/MPL-1.1.html
  • Mozilla Public License version 1.1
  • Software distributed under the Mozilla Public License is distributed on an “AS IS” basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.
  • The Source Code version of the Covered Code is available at https://github.com/itextsharper/iTextSharp-4.1.6

EXHIBIT B: Software License Compliance Report

In accordance with the terms and conditions of this Exhibit, Bocada and Licensee shall cooperate in good faith to confirm Licensee’s compliance with the Agreement and any related orders.

  1. Compliance Report. On the last business day of each six (6) month anniversary of the original License Term (where each six (6) month period represents a “Compliance Period”), Licensee shall run a report to determine the number of Units of Software in use by Licensee pursuant to the Agreement. Such report shall be developed by Bocada and verified by both Bocada and Licensee for its completeness and accuracy to confirm Licensee’s compliance with the Agreement and the related order(s) (the “Compliance Report”). Within ten (10) business days of the conclusion of each Compliance Period, Licensee shall deliver a copy of the Compliance Report by fax or email to Bocada for evaluation and determination of any additional fees that are owed by Licensee to Bocada, if any.
  2. Determination of the Number of Units of Software in Use. For each Day of the applicable Compliance Period, the Compliance Report shall calculate the number of Active Units in use by Licensee on each such Day. For purposes of this Section, “Day” means the period of time from midnight-to-midnight UTC. “Active Unit” means as a Unit that has any attempted backup activity within a trailing thirty (30) calendar day period. The number of Active Units on each Day of the Compliance Period shall be sorted in descending order from the highest number of Active Units to the lowest number of Active Units, and the tenth (10th) highest data point from such descending sort shall be defined as the total number of Active Units in use by Licensee during the applicable Compliance Period (the “Active Unit Count”).
  3. Determination of Additional Fees. For each Compliance Period, in the event that the Active Unit Count as determined in accordance with the Compliance Report exceeds the total number of Units currently under License by Licensee, Bocada shall invoice Licensee in accordance with the terms and conditions of the Agreement for all amounts due related to such excess usage, where the amounts due shall be based on the following:
    1. the License Fee shall be determined by multiplying the License Fee per Unit by the difference between the Active Unit Count as determined in accordance with the Compliance Report and the total number of Units currently under License by Licensee (the “Additional License Fees”); and
    2. the Support Services Fee shall be determined by multiplying the Support Percentage by the Additional License Fees, pro-rated through the expiration of the current Support Services Term.
    For each Compliance Period, Bocada shall attach a copy of the Compliance Report for reference to its invoice, if any.
  4. Other. Upon the conclusion of each Compliance Period, Licensee shall not have the ability to cure any such excess usage other than through Licensee’s payment of all additional amounts due hereunder, and Licensee’s continued compliance with the Agreement and related order(s) shall only be achieved through the payment of all such additional amounts.

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