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END USER SOFTWARE LICENSE AGREEMENT FOR OPEN TEXT CORPORATION SOFTWARE OPENTEXT END USER LICENSE AGREEMENT (v3.1, Jan2016)

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END USER SOFTWARE LICENSE AGREEMENT FOR OPEN TEXT CORPORATION SOFTWARE
PRODUCT:

OPENTEXT

END USER LICENSE AGREEMENT

(v3.1, Jan2016)

 

THIS END USER LICENSE AGREEMENT (“EULA”) IS BETWEEN OPEN TEXT
CORPORATION OR THE OT AFFILIATE THAT RECEIVED PAYMENT FROM EITHER YOU OR
YOUR RESELLER, (COLLECTIVELY “OT”) AND YOU (EITHER AS AN INDIVIDUAL, A
SINGLE CORPORATION, OR OTHER SINGLE LEGAL ENTITY THAT LICENSES THE
APPLICABLE SOFTWARE) (“LICENSEE”).  PLEASE READ IT CAREFULLY.  IF
LICENSEE (WHETHER THROUGH AN EMPLOYEE, CONTRACTOR, OR AGENT) CLICKS TO
INDICATE ACCEPTANCE OR INSTALLS AND USES THE SOFTWARE ACCOMPANYING THIS
LICENSE, LICENSEE INDICATES ACCEPTANCE OF THESE TERMS AND CONDITIONS
UNLESS LICENSEE HAS A DIFFERENT LICENSE AGREEMENT SIGNED BY BOTH PARTIES
THAT EXPRESSLY OVERRIDES THE TERMS OF A CLICK-THROUGH LICENSE.  READ ALL
OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO
INSTALLING OR USING THE SOFTWARE. IF LICENSEE DOES NOT ACCEPT THESE
TERMS, LICENSEE MUST DELETE THE SOFTWARE, CEASE ANY USE, AND NOTIFY OT
OF THE REJECTION. IF THE SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK
“DISAGREE/DECLINE”.

 

OT and Licensee agree as follows:

 

1.0          DEFINITIONS

“AFFILIATE” means any entity controlled by, controlling, or under common
control with a party to this EULA. Control exists through ownership,
directly or indirectly, of a majority of the outstanding equity capital
and of the voting interests of the subject entity. If an entity ceases
to meet these criteria, it will cease to be an Affiliate under this
EULA;

“CLAIM” means claims, suits, actions or proceedings brought against
Licensee in a court of competent jurisdiction in a Covered Country by a
third party which allege an infringement of the third party's patent,
copyright, or trade secret rights of which OT is aware existing under
the laws of the Covered Countries;

“COVERED COUNTRIES” means Australia, Austria, Belgium, Canada, Denmark,
Finland, France, Germany, Italy, New Zealand, Norway, Spain, Sweden,
Switzerland, the Netherlands, the United Kingdom and the United States.

“DOCUMENTATION” means user guides, operating manuals, and release notes
in effect as of the date of delivery of the applicable Software, made
generally available by OT;

“LICENSE DOCUMENTS” means this EULA including any addenda, the License
Model Schedule, all Transaction Documents (including pricing
information), Documentation, the document entitled Third Party
Notifications available at www.opentext.com/agreements, and any other
documents provided by OT setting out permitted uses of the Software;

“LICENSE FEES” means all non-refundable fees payable by Licensee to OT
with respect to the granting of Software Licenses;

“LICENSE MODEL” means the description of the conditions, limitations and
restrictions associated with the Software License which govern the use
of the Software;

“LICENSE MODEL SCHEDULE” for each individual Software License means the
schedule entitled “License Model Schedule” posted at
http://www.opentext.com/agreements in effect on the date of the
applicable Transaction Document.  The License Model Schedule is
incorporated into this EULA;

“LOCAL LAW” means the laws of the country of residence of the OT
Affiliate licensing the Software Licenses;

“OT” means the applicable Open Text Corporation Affiliate as defined
above;

“PHYSICAL MEDIA” means the physical media or hardware containing or
enabling Software;

“RESELLER means an authorized OT reseller;

“SOFTWARE” includes software products, Documentation, and Support
Software licensed to Licensee under this EULA, including all copies made
by Licensee and may, where the meaning so implies, refer to all of the
Software or portions thereof;

“SOFTWARE LICENSE” means a license for the Software granted under this
EULA to the Licensee;

“SUPPORT SOFTWARE” means all maintenance and support software, updates,
upgrades, patches, fixes, modifications, ported versions, or new
versions of the Software provided to Licensee pursuant to an OT
maintenance and support program, together with all related Documentation
provided to Licensee pursuant to such program;

“TAXES” means the sales, use, consumption, goods and services, and
value-added taxes imposed by the appropriate governments arising out of
granting of licenses and delivery of Software under this EULA, except
taxes imposed on OT's income;

“THIRD PARTY SOFTWARE” means software products owned and licensed
directly by third parties to the end user;

“TRANSACTION DOCUMENT” includes: a) a written order schedule signed by
both parties which references this EULA, b) a quotation issued by OT and
signed by the Licensee, c) an invoice issued by OT, or d) any other
document that references this EULA and is agreed to by OT in writing. 
If and to the extent of any inconsistency between two or more
Transaction Documents, the priority of the Transaction Documents will be
interpreted in the order listed above. All Transaction Documents are
governed by this EULA.

 

2.0          OWNERSHIP OF THE SOFTWARE

2.1          OWNERSHIP.    None of the Software is being sold.  All
ownership, intellectual property, and other rights and interests in the
Software remain solely with Open Text Corporation, its Affiliates or its
licensors. The source code of the Software is trade secret of Open Text
Corporation, its Affiliates or its licensors, and is their confidential
information.  

 

3.0          LICENSE GRANT

3.1          GRANT OF LICENSE.  Except as otherwise stated in the
License Documents and subject to Licensee's payment of the License Fees
and Taxes in full, OT grants to Licensee a worldwide, nonexclusive,
perpetual (unless stated to be a time limited term), internal business
use license (unless otherwise stated in the License Model Schedule) to
download, install and execute the Software identified in the applicable
Transaction Document subject to the License Models, restrictions,
quantities, conditions, and limitations stated in the License
Documents.  OT reserves all rights not expressly granted to Licensee in
a written document signed by both parties.

3.2          APPLICABLE LICENSE MODELS.   The License Model and any
restrictions for the Software will be stated in the Transaction
Document.  If no License Model or restrictions are specified in the
Transaction Document, the License Model (and any capacities) for which
OT has been paid License Fees will apply.  

3.3          ALLOCATION OF LICENSES TO AFFILIATES.  Unless prohibited
under the applicable License Document, the Licensee may allocate
Software Licenses to its Affiliates, provided: (a) the Licensee remains
responsible for the Affiliate's compliance with the License Documents;
and (b) the Licensee is liable for any breach of the License Documents
by an Affiliate. 

 

4.0          AUTHORIZED COPIES

4.1          SOFTWARE AND DOCUMENTATION.  Licensee may make as many
copies of the Software necessary for it to use the Software as licensed.
Each copy of the Software made by Licensee must contain the same
copyright and other notices that appear on the original copy.  Licensee
will not modify the Documentation. Documentation may: (a) only be used
to support Licensee's use of the Software; (b) not be republished or
redistributed to any unauthorized third party; and (c) not be
distributed or used to conduct training for which Licensee, or any other
party, receives a fee. Licensee will not copy any system schema
reference document related to the Software.

 

5.0          RESTRICTIONS

5.1          GENERAL RESTRICTIONS.  Except as provided in the License
Documents, Licensee will not and will not permit any other party to: (a)
assign, transfer, give, distribute, reproduce, transmit, sell, lease,
license, sublicense, publicly display or perform, redistribute or
encumber the Software by any means, to any party; (b) rent, loan or use
the Software for service bureau or time-sharing purposes, or permit
other individuals or entities to create Internet “links” to the Software
or “frame” or “mirror” the Software on any other server or wireless or
Internet-based device, or in any other way allow third parties to
access, use, and/or exploit the Software; (c) use the Software, in whole
or in part, to create a competitive offering; (d) charge a fee to any
party for access to or use of the Software; (e) use the Software in a
manner inconsistent with the License Documents.

5.2          FURTHER RESTRICTIONS.  Licensee will not disclose results
of any benchmark or other performance, evaluation, or test run on or
related to the Software.   Licensee acknowledges that the Software is
not fault-tolerant and not designed, manufactured, or intended for use
or resale as online control equipment in hazardous environments
requiring fail-safe performance and consequently will not use the
Software for (w) the on-line control of aircraft, air traffic, aircraft
navigation, or aircraft communications; (x) in the design, construction,
operation or maintenance of any nuclear facility; (y) medical or
surgical applications; or (z) any other application in which failure
could cause personal injury or death.  Except as expressly permitted
under Local Law, Licensee will not modify, adapt, translate, reverse
engineer, decompile, disassemble, decrypt, port, emulate the
functionality, reverse compile, reverse assemble, or otherwise reduce or
attempt to discover any source code or underlying structures, ideas, or
algorithms of the Software or any confidential information or trade
secret

5.3          DERIVATIVE WORKS / IMPROVEMENTS.  Licensee is prohibited
from creating any change, translation, adaptation, arrangement,
addition, modification, extension, upgrade, update, improvement,
(including patentable improvements), new version, or other derivative
work based on, incorporating, or using, the Software  .  Notwithstanding
, if any of the Software is provided to the Licensee in source code
format (or any other format that can be modified), the Licensee may
modify such portion of the Software for the sole purpose of using the
Software in accordance with this EULA and OT will solely own all
modified portions and Licensee will irrevocably assign to OT in
perpetuity all worldwide intellectual property and any other proprietary
rights in and to any modifications of the Software.

5.4          INTERFACING AND INTERACTIVE SOFTWARE.  Licensee may not
permit any software products not licensed by OT to interface or interact
with the Software, unless accomplished through the use of application
program interfaces provided by OT.    

 

6.0          ORDERING SOFTWARE LICENSES

6.1          DIRECT ORDERS.  If Licensee orders Software directly from
OT, the Software must be identified on a Transaction Document acceptable
to OT.   

6.2          ORDERS THROUGH AN OT RESELLER.  Software Licenses ordered
through a Reseller are governed by the license grant set out in this
EULA and the License Model description set out in the License Model
Schedule.  The License Model will be stated in an order document between
Licensee and Reseller.  If Reseller does not notify Licensee of the
correct License Model, then the License Model for which OT has been paid
License Fees will apply. 

6.3          RISK OF LOSS AND SHIPPING TERMS.  The Software is deemed
delivered on the earlier of (a) when it is made available by OT for
electronic download, or (b) when OT delivers the Software on Physical
Media. Title to the Physical Media and all risk of loss for the Physical
Media will pass to Licensee when delivered by OT to the shipping dock of
the OT shipping facility. 

6.4          INVOICING AND PAYMENT.  OT may invoice Licensee for License
Fees and Taxes upon delivery of Software.  All License Fees and Taxes
due to OT by Licensee are due and payable upon Licensee's receipt of an
invoice from OT. License Fees do not include Taxes which are the
responsibility of Licensee. If OT is obligated to pay Taxes on behalf of
Licensee, Licensee will reimburse OT in full promptly following receipt
of OT's invoice. Licensee is responsible for paying the full Licensee
Fees to OT regardless of any Taxes Licensee is required to withhold or
deduct. All License Fees and Taxes due to OT under this EULA are payable
in the currency specified in the Transaction Document.  All License Fees
and Taxes due to OT which are not paid in full within 30 days following
its due date will bear interest at a rate of 1.5% per month (18% per
annum) or the maximum amount allowed by law, if less, on the unpaid
portion until fully paid.  This subsection does not apply if Software is
purchased through an OT reseller.

6.5          OVER USAGE.  OT may invoice Licensee for fees and Taxes
payable by Licensee due to use of or access to the Software in excess of
the number or type of Software Licenses granted by OT.

6.6          LICENSEE AFFILIATE ORDERS.  Licensee's Affiliates that
order Software Licenses are bound by the terms and conditions of this
EULA as if it were the Licensee.  Licensee and its Affiliates are
jointly and severally liable to OT for any breach of this EULA.

6.7          OT AFFILIATE ORDERS.  OT Affiliates may fulfill orders
pursuant to a Transaction Document in which case the OT Affiliate is
bound by all of the terms and conditions of this EULA as if it were OT. 

 

7.0          OT SUPPORT AND MAINTENANCE.

7.1          OT SUPPORT AND MAINTENANCE PROGRAM.  All Support Software
provided to Licensee under an OT maintenance or support program is
governed by this EULA.  The provision of maintenance and support
services by OT will be governed by the then-current version of the
applicable OT software maintenance program handbook (available upon
request or at www.opentext.com/agreements).

 

8.0          AUDITS AND NONCOMPLIANCE.

8.1          AUDIT.  During the term of this EULA and for 24 months
after, Licensee will maintain electronic and other records sufficient
for OT to confirm that Licensee has complied with this EULA. Licensee
will promptly and accurately complete and return (no less than 30 days)
any self-audit questionnaires, along with a certification by an
authorized representative of Licensee confirming that Licensee's
responses to the questionnaire accurately and fully reflect Licensee's
usage of the Software.  Furthermore OT may once per year audit
Licensee's records and computer systems (including servers, databases,
and all other applicable software and hardware) to ensure Licensee has
complied with this EULA. Licensee shall cooperate with OT's audit team
and promptly and accurately respond to, database queries, location
information, system reports, and other reports requested by OT and
provide a certification by an authorized representative of Licensee
confirming that information provided by Licensee accurately reflects
Licensee's usage of the Software

8.2          CONDUCT.  Audits will be conducted during regular business
hours and will not interfere unreasonably with Licensee's business. OT
will provide Licensee with 7 days prior notice of each audit.  Licensee
will allow OT to make copies of relevant Licensee records. OT will
comply with all applicable data protection regulations.

8.3          NONCOMPLIANCE.  If Licensee is not in compliance with the
Software Licenses, Licensee will be deemed to have acquired additional
Software Licenses at OT's then-current list price to bring Licensee into
compliance, and Licensee must immediately pay: (a) the applicable
License Fees and Taxes, and (b) maintenance and support fees covering
(i) the period Licensee was not in compliance with the Software License;
and (ii) the first year maintenance and support fees on any additional
Software Licenses.  If Licensee has failed to comply with the License
Documents, Licensee will reimburse all costs incurred by OT in
performing the audit. Compliance with the License Documents is the sole
responsibility of Licensee.

 

9.0          LIMITED WARRANTIES

9.1          LIMITED SOFTWARE WARRANTY.  OT warrants to Licensee that
Software: (a) will be free of all known viruses at the time of first
delivery; and (b) will perform substantially in accordance with its
accompanying Documentation for 60 days from the date of first delivery.
OT's entire liability, and Licensee's sole remedy, for each breach by OT
of the warranty in: (i) clause (a) is limited to requiring OT to deliver
a replacement copy of the Software to Licensee free of known viruses;
and (ii) clause (b) is limited to requiring OT to correct or work around
the portion of the Software giving rise to such breach within a
commercially reasonable time, failing which OT will refund all License
Fees attributable to the portion of the Software giving rise to the
breach.

9.2          WARRANTY EXCLUSIONS.  The warranties do not apply to any
breach caused by: (a) any change to the Software, except where the
changes were made by OT through Support Software; (b) Licensee's failure
to provide a suitable installation or operating environment for the
Software; (c) use of the Software on or caused by software, firmware,
computer systems, data, technology or a hardware platform not approved
by OT in writing; (d) any telecommunications medium used by Licensee;
(e) failure of Licensee or user  to comply with the Documentation; or
(f) failure of Licensee to report a warranty claim within the warranty
period.  OT does not warrant that the Software is error-free or will
operate without interruption.

9.3.         WARRANTY DISCLAIMER.  EXCEPT FOR THE EXPRESS LIMITED
WARRANTIES PROVIDED IN THIS SECTION, OT AND OT'S LICENSORS  MAKE NO
REPRESENTATIONS AND DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY
WARRANTIES AND CONDITIONS, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,  FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE ADEQUACY OF THE SOFTWARE TO
PRODUCE A PARTICULAR RESULT.    

9.4          INABILITY TO EXCLUDE WARRANTIES. If a jurisdiction
applicable to this EULA restricts the exclusion of certain implied
warranties, limitations on how long an implied warranty may last, or the
exclusion or limitation of incidental, consequential, or special
damages: (a) each warranty which cannot be excluded is limited in time
to 60 days from the date of first delivery of the Software; and (b) OT's
total liability to Licensee for breach of all such warranties are
limited to the amount stated in the Limitation of Liability section.

 

10.0        OT INFRINGEMENT INDEMNITY

10.1        INFRINGEMENT CLAIMS.  OT will defend Licensee from any
Claim, to the extent the Claim arises solely as a result of Licensee's
use of the Software in accordance with the License Documents, and
provided the alleged infringement was not caused by: (a) Licensee's
failure to incorporate a Software update or upgrade that would have
avoided the alleged infringement; (b) the modification of the Software
by any party other than OT; (c) the combination or use of the Software
with software, hardware, firmware, data, or technology not licensed to
Licensee by OT or approved by OT in writing; or (d) unlicensed
activities of the Licensee .

10.2        EXCLUSIONS.  OT's obligations in the this section are
conditioned upon: (a) Licensee notifying OT in writing within 10 days of
Licensee becoming aware of a Claim; (b) Licensee not making an admission
against OT's interests unless made pursuant to a judicial request or
order; (c) Licensee not agreeing to any settlement of any Claim without
the prior written consent of OT; and (d) Licensee, at the request of OT,
providing all reasonable assistance to OT in connection with the
defense, litigation, and settlement by OT of the Claim; and (e) OT
having sole control over the selection and retainer of legal counsel,
and over the litigation or the settlement of each Claim.  OT will
indemnify Licensee from any judgment finally awarded, for which all
avenues of appeal have been exhausted, or any final settlement in
connection with any Claims, provided all the conditions of this section
are satisfied. 

10.3        LICENSEE'S CONTINUED USE.  If the Software becomes the
subject of a Claim, OT will, in its absolute discretion, either (a)
obtain a license for Licensee to continue using the Software, (b)
replace or modify the Software without unreasonable degradation in
functionality or (c) terminate the Software License to the infringing
portion of the Software and refund the unamortized portion of the
License Fees received by OT and attributable to the infringing portion
of the Software, based on a 3 year straight line amortization.  OT's
entire liability and Licensee's sole and exclusive remedy with respect
to any Claims are limited to the remedies set out in the OT Infringement
Indemnity section. 

 

11.0        LIMITATION OF LIABILITY

11.1        EXCLUSION OF DAMAGES.  SUBJECT TO SUBSECTION 11.4 BUT
NOTWITHSTANDING ANY BREACH BY OT (INCLUDING FUNDAMENTAL BREACH) OR
TERMINATION OF THIS EULA, OT IS NOT LIABLE TO LICENSEE OR TO ANY OTHER
PARTY FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST
REVENUE, LOST PROFITS, LOST  OR CORRUPTED DATA, OR REPROCUREMENT AMOUNT.

11.2        LIMITATION OF LIABILITY.  OT'S AGGREGATE LIABILITY TO
LICENSEE WILL NOT EXCEED THE TOTAL AMOUNT OF LICENSE FEES PAID TO OT
UNDER THE RELEVANT TRANSACTION DOCUMENT. THE PARTIES WOULD NOT HAVE
ENTERED INTO THIS EULA WITHOUT THIS SECTION.

11.3        DISCLAIMER.  THE LIMITATIONS IN THIS SECTION APPLY: (A) TO
LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER
IN CONTRACT, TORT, EQUITY, AT LAW, STRICT PRODUCT LIABILITY, OR
OTHERWISE; © EVEN IF OT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF
THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND
(D) EVEN IF LICENSEE'S REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE.  IF THE
APPLICATION OF THIS SECTION IS LIMITED BY LAW OT'S LIABILITY WILL BE
LIMITED TO THE EXTENT PERMITTED BY LOCAL LAW.

11.4        THIS SECTION 11.4 APPLIES ONLY IF AND TO THE EXTENT REQUIRED
BY LOCAL LAW.  NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER
PARTY'S LIABILITY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY
NEGLIGENCE; (II) FRAUD OR DECEIT; OR (III) ANY OTHER LIABILITY THAT
CANNOT BE EXCLUDED BY LOCAL LAW.

 

12.0        TERMINATION

12.1        TERMINATION FOR DEFAULT.  Either party may terminate this
EULA if the other party: (a) becomes insolvent; and (b) has a receiver
or receiver manager appointed with respect to it or any of its assets.
Without prejudice to each right or remedy of a non-breaching party,
either party may terminate this EULA for material breach by written
notice, effective 10 days after notice unless the other party first
cures the breach. 

12.2        EFFECT OF TERMINATION OR EXPIRATION.  Upon any termination
of this EULA, or license granted pursuant to this EULA, or upon
expiration of a term license: (a) all Software Licenses will immediately
terminate; (b) Licensee will immediately cease all use of the Software;
and (c) Licensee must either deliver to OT or destroy all copies of
Software, Documentation, and OT confidential information in Licensee's
possession or control.  Within 15 days after termination, an authorized
representative of Licensee must certify in writing that all copies have
been delivered to OT or destroyed. Any terms in this EULA which by their
nature extend beyond termination or expiration of this EULA will remain
in effect until fulfilled.

 

13.0        MISCELLANEOUS PROVISIONS

13.1        CONFIDENTIALITY.  Information exchanged under this EULA will
be treated as confidential if identified as such at disclosure or if the
circumstances of disclosure would reasonably indicate such treatment.
Confidential information may only be used for the purpose of fulfilling
obligations or exercising rights under this EULA and may only be shared
with employees, agents, or contractors with a need to know such
information. Confidential information will be protected using a
reasonable degree of care to prevent unauthorized use or disclosure
during the period the information remains confidential or a trade
secret. These obligations do not cover information that (a) was known or
becomes known to the receiving party without obligation of
confidentiality; (b) is independently developed by the receiving party
or (c) is required to be disclosed by law or a governmental agency.

13.2        AUTOMATED VERIFICATION.  The Software may contain or require
a license key to prevent unauthorized installation or to enforce limits
of the Software License, and may contain devices or functionality to
monitor Licensee's compliance with this EULA.

13.3        DEVELOPER TOOLS.  OT is not responsible or liable for
Licensee's development or use of additional software code or software
products (“Licensee Software”) using software developer tools licensed
by OT and Licensee will defend and indemnify OT against any claims,
damages, costs, losses or expenses related to the development or use of
the Licensee Software. 

13.4        INDEPENDENT CONTRACTORS.  OT and Licensee are independent
contractors. Neither party has any authority to bind the other in any
manner.

13.5        WAIVER, AMENDMENT, ASSIGNMENT.  Any amendment of this EULA
must be in writing and signed by both parties. Licensee may not assign,
transfer, or sublicense any portion of its interests, rights, or
obligations under this EULA by written agreement, merger, consolidation,
change of control, operation of law, or otherwise, without the prior
written consent of OT. Neither party will be deemed to have waived any
of its rights under this EULA by lapse of time or by any statement or
representation other than by a written waiver by a duly authorized
representative.  No waiver of a breach of this EULA will constitute a
waiver of any prior or subsequent breach of this EULA. An assignment in
contravention of this section will be null and void.  Except to the
extent identified in this subsection, this EULA will be binding upon and
inure to the benefit of the respective successors and assigns of the
parties.

13.6        GOVERNING LAW.  This EULA is governed by: (a) the laws of
the State of Delaware if licensed from OT in the United States; (b) the
laws of Ontario, if licensed from OT in Canada; or (c) Local Law if
licensed outside the United States or Canada; but in each case excluding
(y) its conflicts or choice of law rules, and (z) the United Nations
Convention on Contracts for the International Sale of Goods. Except for
a request by OT for injunctive or other equitable relief, any dispute
arising out of this EULA will be subject to the exclusive jurisdiction
of the courts located in the State of Delaware. The prevailing party in
any litigation related to this EULA will be entitled to its reasonable
attorneys' fees and court costs. The Uniform Computer Information
Transactions Act, or any version, adopted by any state, does not apply
to this EULA.

13.7        FORCE MAJEURE.  Except for payment and confidentiality
obligations, or protection of intellectual property, neither party is
responsible for any delay or failure in performance of this EULA to the
extent due to causes beyond its reasonable control.

13.8        LEGAL EFFECT. This EULA describes certain legal rights and
obligations. The Licensee may have other rights under Local Law. The
Licensee may also have rights with respect to the party from whom the
Licensee licensed the Software. This EULA does not change the Licensee's
rights under Local Law if the laws of that country do not permit it to
do so.

13.9        SEVERABILITY.  If any provision of this EULA is deemed
contrary to Local Law or unenforceable by a court of competent
jurisdiction, the provision will be severed from this EULA and all
remaining provisions will continue in full force.

13.10      EXPORT LAWS.  The Software, including Documentation, is
subject to U.S. export control laws, including the U.S. Export
Administration Act and its associated regulations, and may be subject to
export or import regulations in other countries. Licensee will comply
strictly with all regulations and has the responsibility to obtain any
licenses required to export, re-export, or import Software or
Documentation.

13.11      PRESS RELEASE.  OT may refer to Licensee's relationship with
OT in a public press release or marketing materials.

13.12      ATTRIBUTION NOTICES.  Licensee will not remove, modify,
obscure, resize, or relocate any ownership, attribution, or branding
notices from the Software.

13.13      RESALE OF THIRD PARTY SOFTWARE.   The use of any Third Party
Software resold by OT to the Licensee will be governed by a license
agreement between the Third Party Software owner and the Licensee.  OT
does not provide any warranties related to the Third Party Software.  OT
has no liability or obligation to the Licensee related to the Third
Party Software.    

13.14      US GOVERNMENT END USERS-RESTRICTED RIGHTS LEGEND.  If the
Software is being licensed directly or indirectly on behalf of the
United States government, the following applies. For civilian agencies
and departments: the Software was developed at private expense and is
“restricted computer software” submitted with restricted rights in
accordance with subparagraphs (a) through (d) of the Commercial Computer
Software-Restricted Rights clause of FAR 52.227-19 and its successors,
and it is unpublished and all rights are reserved under the copyright
laws of the United States. For units of the Department of Defense, the
Software is “commercial computer software” and “commercial computer
software documentation” under the Rights in Computer Software and
Computer Software Documentation clause of DFAR 227.7202-3 (a) and its
successors, and all use, duplication or disclosure is subject to the
license and restrictions set forth in this EULA.

13.15      ENTIRE LICENSE AGREEMENT.  The License Documents set forth
the entire agreement between the parties with respect to this subject
matter, and supersede all other related oral and written agreements and
communications between the parties. Neither party has relied upon such
other agreements or communications. Any purchase order terms which
purport to amend or modify terms of the License Documents, or which
conflict with the License Documents are void. 

13.16      THIRD PARTY RIGHTS.  This EULA does not confer a benefit on,
and is not enforceable by, any person or entity who is not a party to
this EULA.

13.17      LEGAL REVIEW AND INTERPRETATION.  Both parties have had an
opportunity for legal review of the License Documents.  The parties
agree that the License Documents result from negotiation between the
parties.  The License Documents will not be construed in favor of or
against either party by reason of authorship.  The headings used in this
EULA are for convenience only. The term section refers to all
subsections below a section heading (i.e. 3.0) and the term subsection
refers to sequentially numbered subsections following a section (i.e.
3.1). Les parties aux présentes confirment leur volonté que cette
convention, de même que tous les documents et avis qui s'y rattachent ou
qui s'y rattacheront, soient rédigés en langue anglaise The parties
confirm that this Agreement and all related documentation is and will be
in the English language.

13.18      NOTICES.  Any notice under this EULA that must be given by a
party in writing is deemed effective when sent either: (a) via certified
or registered mail, postage prepaid, or (b) via express mail or
nationally recognized courier service to the other party's address
specified in this EULA or on the most recent Transaction Document.
Notices to OT will also be sent to OT's general counsel at 275 Frank
Tompa Drive, Waterloo, Ontario Canada, N2L 0A1.

13.19      HARDWARE.  If hardware is identified on a Transaction
Document, the sale and use of the hardware will be governed by terms
other than this EULA. OT disclaims all warranties and liability with
respect to the hardware.

13.20      ORACLE SOFTWARE.  If the Software includes Oracle component
parts pursuant to license rights granted to OT, all such Oracle Software
is protected by copyright and other propriety rights of Oracle. 
Licensee may be held directly responsible by Oracle for acts relating to
their component parts that are not authorized by this EULA.  Oracle is a
third party beneficiary under this EULA.  To the maximum extent
permitted by Local Law, Licensee waive all claims and causes of action
against Oracle that arise under this EULA or in connection with its use
of, or inability to use the Software or its components.  Oracle has no
liability of any kind to Licensee in connection with any such claims or
causes of action.


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