bk bkcl(1) BitKeeper User's Manual bk bkcl(1) NAME bk bkcl - display commercial use BitKeeper license LICENSE BITKEEPER SOFTWARE LICENSE AGREEMENT BITMOVER, INC ("BitMover") IS WILLING TO LICENSE THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CON- TAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS CARE- FULLY. BY CLICKING ON "ACCEPT" AND/OR INSTALLING THE SOFTWARE, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU DO NOT AGREE WITH THESE TERMS, THEN BITMOVER IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD NOT PROCEED WITH INSTALLING OR USING THE SOFTWARE. 1. Software. The parties are entering into this Agreement to establish an arrangement whereby Licensee may temporarily evaluate and, at its option, obtain an Operating License for certain application software programs, as described more fully in the attached Prod- uct Schedule and accompanying Documentation (the "Software") on terms and subject to the conditions set forth herein. 2. Scope of Use. BitMover expressly reserves all rights in the Software not specifically granted to Licensee. (a) Evaluation License. The Licensee is granted an evaluation license authorizing it to install, store, load, execute, display and evaluate internally (collectively, "Evaluate") the Software on the same terms and conditions applicable under Section 2(b) ("Operating License") for a period of thirty (30) calendar days after execution of this Agreement (the "Evaluation Period"). In the event the Licensee con- tinues use of the Software after completion of the Evalua- tion Period, the Licensee shall be deemed to have accepted an Operating License to Use the Software under Subsection (b) ("Operating License") in accordance with the other terms and conditions of this Agreement; otherwise, this Agreement shall be deemed terminated and Licensee shall destroy all copies of the Software in its possession or control. (b) Operating License. Licensee is granted a world-wide nonex- clusive license to install, store and load the Software on appropriately configured equipment and to allow its autho- rized users for whom the applicable fees have been paid or will be paid upon receipt of invoice to use, execute, and display ("Use") the Software for its ordinary and customary business purposes on behalf of itself and its affiliates. (c) Transfer of License. Except as specifically authorized in another provision of this Agreement and/or the attached Fee Schedule, neither this Agreement, nor any rights or obliga- tions hereunder, may be transferred, assigned, delegated, sub-licensed, relocated or moved to another person, in whole or in part, without BitMover's prior written consent and any attempt to the contrary shall be void and of no legal effect. 3. Term. Perpetual and/or Leased Licenses shall be indicated in the attached Licenses Schedule. 3(a) ("Leased Licenses") and/or 3(b) ("Perpetual Licenses") shall apply only if corresponding Licenses are indicated in the attached Licenses Schedule. (a) Leased Licenses: This Agreement shall commence on the 1st of the month closest to the date of acceptance of this agreement, such acceptance indicated by clicking "ACCEPT" below, and shall continue in full force and effect for a period of three (3) months, six (6) months, or one (1) year ("Initial Term") as indicated in the Licenses Schedule, unless terminated earlier in accordance with Section 14 ("Termination"). The Term shall automatically be renewed for successive like periods (each, a "Renewal Term") unless Licensee notifies BitMover at least thirty (30) days prior to the expiration of the Initial Term (or Renewal Term, as the case may be) that the Agreement shall not be renewed. The Initial Term and any Renewal Term are collectively referred to herein as the "Term". Upon renewal, Licensee shall pay any applicable License Fee with respect to such Software. Renewal of the Term shall not operate to renew any warranty obligations under Section 11 ("Warranties and Indemnification"). Renewal procedures are described in the Fee Schedule, and unless such procedures are strictly sat- isfied, including payment of any required license and/or support fees, Licensee's use of the Software for any pur- pose after the expiration of the term is not authorized. Upon expiration of the Term the Software may automatically disable itself. (b) Perpetual Licenses: This Agreement shall commence on the 1st of the month closest to the date of acceptance of this agreement, such acceptance indicated by clicking "ACCEPT" below, and shall continue in full force and effect in per- petuity, unless terminated earlier in accordance with Sec- tion 14 ("Termination"). The annual support option shall automatically be renewed for successive like periods unless Licensee notifies BitMover at least thirty (30) days prior to the expiration of the annual support option that the annual support option shall not be renewed. Upon renewal, Licensee shall pay any applicable Support Fee. Renewal of the annual support option shall not operate to renew any warranty obligations under Section 11 ("Warranties and Indemnification"). Renewal procedures are described in the Fee Schedule, and unless such procedures are strictly sat- isfied, including payment of any required license and/or support fees, Licensee's use of the Software for any pur- pose after the expiration of the term is not authorized. 4. Restrictions. You may not: (i) modify or translate the Software; (ii) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law; (iii) rent, lease, loan, resell or create derivative works based on the Software (iv) merge the Software with another prod- uct; (v) separate the Software into its component parts; (vi) copy the Software, except as expressly provided herein, and as reasonably necessary for back up and recovery purposes; or (vii) remove or obscure any proprietary rights notices, labels, copy- rights, trademarks, and/or servicemarks on the Software. 5. Program Code & Documentation. (a) Program Code. The Software shall be provided to Licensee and Used strictly in machine-readable object code format. No source code or technical-level documentation are licensed under this Agreement. (b) Program Documentation. The Licensee shall be provided with online documentation, included with the Software, describ- ing in reasonable detail understandable by a user of gen- eral proficiency the use and operation of the Software. The Documentation shall be supplied in magnetic form and may be reproduced by Licensee for purposes authorized herein. 6. Acceptance. The Software shall be deemed accepted by Licensee unless Licensee notifies BitMover in writing of a material defect in the Software within ten (10) business days after delivery and commencement of the Operating License. 7. Support Services. If Lease is indicated in the attached Licenses Schedule, for a period of five (5) years after expiration of any warranty under Section 11 ("Warranties and Indemnification"), the Licensee shall have the option (exercised by payment of the Annual Lease Fee set forth in the then current Fee Schedule) to receive the Software support services set forth below. If Perpetual is indicated in the attached Licenses Schedule, for a period of five (5) years after expiration of any warranty under Section 11 ("Warranties and Indemnification"), the Licensee shall have the option (exercised by payment of the Annual Support Fee set forth in the then current Fee Schedule) to receive the Software support services set forth below. (a) Hotline Service. Assistance for error correction and advice on the use and operation of the all maintained ver- sions of the Software, Monday through Friday, from 9:00 a.m. to 5:00 p.m., BitMover's local time. Service requests transmitted during non-business hours shall be considered received by BitMover on the next business day. Trouble Reports shall be communicated by telephone or telecopier machine and shall provide sufficient information to enable BitMover to replicate and diagnose the reported problem. BitMover shall be provided reasonable access to the Soft- ware via remote dial-in contact, subject to Licensee's nor- mal security requirements. Unless otherwise agreed, out-of- scope work or maintenance work outside regular business hours shall be subject to a surcharge equal to BitMover's current labor rate. (b) Updates. Copies of each revision or "Update" to the Soft- ware and associated Documentation which BitMover generally distributes. BitMover's designation of an item as a new version or an enhancement rather than an Update shall be conclusive unless clearly erroneous. BitMover shall pro- vide maintenance for all versions of the Software released within six months of the most recent version of the Soft- ware. (c) Certain Conditions. BitMover shall not be obligated to provide maintenance service if: (i) the reported error was caused by unauthorized changes in Software source code, program parameters or other user adjustable features; (ii) the error results from operator error, errors in data not supplied by BitMover or use that is not in accordance with the Documentation or specifications; (iii) the error is in a prior release that was corrected through issuance of an Update that Licensee has failed to install, (iv) the Soft- ware does not pass the included regression tests when run on the Licensee's system, or (v) the Licensee has failed to pay any required Annual Support Fee or is otherwise in default of this Agreement. (d) Training. This Agreement does not provide for any Training Services with respect to the use and operation of the Soft- ware. BitMover shall be reasonably available to provide Training Services under a signed amendment to this Agree- ment and in consideration for a Training Fee (or other pricing arrangement) reasonably acceptable to each party. 8. Prices & Payment. The prices and fees for Software or other technology provided hereunder, any Support Services and other deliverables are set forth on the Fee Schedule. License Fees shall be invoiced as specified in the Fee Schedule. Invoiced amounts shall be paid within thirty (30) days from receipt of invoice. Licensee may not withhold or "setoff" any amounts due hereunder. BitMover reserves the right to stop work and assert appropriate liens until all amounts due are paid in full. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one- half (1.5) percent per month or fraction thereof until paid. Prices quoted do not include and Licensee shall pay, indemnify and hold BitMover harmless from all sales/use, gross receipts, value-added, GST other tax (including interest and penalties imposed thereon) on the transaction contemplated herein. 9. Ownership. Bitmover and its suppliers own the Documentation, the Software and all intellectual property rights embodied therein, including copyrights and valuable trade secrets embodied in the Software's design and coding methodology. The Software is protected by United States copyright laws and international treaty provi- sions. This Agreement provides Licensee only a limited use license, and no ownership of any intellectual property. 10. Confidentiality. (a) Acknowledgment. Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of BitMover and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expres- sions. BitMover hereby acknowledges and agrees that Licensee may provide BitMover with confidential information during the course of normal use and support of the Soft- ware. Accordingly, each party agrees to treat confidential information in accordance with the confidentiality require- ments and conditions set forth below. (b) Exclusions. Confidential Information does not include: (i) information already known or independently developed by either party outside the scope of this relationship by per- sonnel not having access to any Confidential Information; (ii) information in the public domain through no wrongful act of either party;, or (iii) information received by either party from a third party who was free to disclose it. (c) Maintenance of Confidential Information. Each party hereby agrees during the Term and at all times thereafter to keep confidential all confidential information disclosed to it by the other party in accordance herewith. Each party shall use at least the same degree of care in safeguarding the Confidential Information as they use in safeguarding their own confidential information, but in no event shall less than due diligence and care be exercised. Upon termi- nation, each party shall destroy all Confidential Informa- tion in their possession or control and cease all further use thereof. Neither the Licensee nor any recipient shall: (i) alter or remove from any Software or associated Docu- mentation any proprietary, copyright, trademark or trade secret legend, or (ii) attempt to decompile, disassemble or reverse engineer the Software (and any information derived in violation of such covenant shall automatically be deemed Confidential Information owned exclusively by BitMover and its suppliers). (d) Disclosures Required by Law. If a receiving party is legally compelled to disclose any of the disclosing party's Confidential Information, then, prior to such disclosure, the receiving party will (a) assert the privileged and con- fidential nature of the Confidential Information and (a) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, the receiving party shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. (e) Injunctive Relief. Each party acknowledges that a breach or threatened breach of the provisions of this Section 10 ("Confidentiality") would cause irreparable harm not ade- quately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent or remedy any such breach. 11. Warranties and Indemnification. (a) General Warranties. BitMover represents and warrants that it has the legal right to grant the Licensee the license as set out in this Agreement. (b) Non-infringement Warranty. BitMover represents and war- rants that the Software, when properly used as contemplated herein, will not infringe or misappropriate any United States copyright, trademark, patent, or trade secrets of any third persons and that there are no such claims of infringement or misappropriation as of the date hereof. (c) Indemnification. Notwithstanding any other provision of this Agreement, BitMover shall defend, indemnify and hold harmless Licensee and its officers, directors, sharehold- ers, employees, accountants, attorneys, agents, affiliates, subsidiaries, successors and assigns against any claim or threat of claim that the Software infringes on any intel- lectual property right of any third party. BitMover shall pay court costs, legal fees and litigation expenses as they are incurred, and any damages finally awarded or settlement agreed upon, resulting from any such claim or threat of claim, provided that Licensee (i) promptly gives BitMover written notice of any such claim, (ii) gives BitMover the full authority to defend any such claim, and (iii) provides BitMover with all information and assistance BitMover requests in connection with such defense. Upon being noti- fied of such a claim, BitMover shall (i) defend through litigation or obtain through negotiation the right of Licensee to continue using the Software; (ii) rework the Software so as to make it non-infringing while preserving the original functionality, or (iii) replace the Software with functionally equivalent software. If none of the foregoing alternatives provide an adequate remedy, Licensee may terminate all or any part of this Agreement and recover amounts paid for the infringing Software within the Term. (d) Limited Performance Warranty. BitMover represents and war- rants for a period of ninety (90) days ("Warranty Period") that it will make a reasonable effort to ensure the Soft- ware operates substantially in accordance with the applica- ble Documentation; provided, that (i) the Software is installed, implemented and operated in accordance with all instructions supplied by BitMover; (ii) Licensee notifies BitMover of any such defect within ten (10) calendar days after the appearance thereof; (iii) Licensee has properly installed all updates made available with respect to the Software, and updates recommended by BitMover with respect to any third party software products (including operating system software) that materially affect the performance of the Software; (iv) Licensee has properly maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) Licensee has not introduced other equipment or software creating an adverse impact on the Software; (vi) Licensee has paid all amounts due hereunder and is not in default of any provision of this Agreement; (vii) any Functional Design or Specification provided by Licensee is an accurate and complete rendering of the relevant fea- tures, applicable interfaces and associated operating envi- ronment, and (viii) Licensee has made no changes (nor per- mitted any changes to be made other than by or with the express approval of BitMover) to the Software source code. (e) No Undocumented Features. BitMover represents and warrants that it will scan the Software with commercially available anti-virus software and shall use due diligence to remove viruses capable of being detected with such software. All corrections shall be as fully warranted as the original work through expiration of the original Warranty Period. (f) Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION ("WARRANTIES AND INDEMNIFICATION") BITMOVER HEREBY DISCLAIMS WITH RESPECT TO ALL LICENSED PRODUCTS, SUPPORT SERVICES OR OTHER DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. ANY UNAUTHORIZED CHANGES TO SOURCE CODE TO A LICENSED PRODUCT WILL VOID THE WARRANTY PROVIDED UNDER THIS SECTION. 12. Limitation of Remedies & Liabilities. The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk: (a) Remedies. Except for certain injunctive relief authorized under Section 10 ("Confidentiality"), Licensee's sole and exclusive remedies for BitMover's default hereunder shall be (i) to obtain the repair, replacement or correction of the defective Software or services to the extent warranted under Section 11 ("Warranties and Indemnification") or, if BitMover reasonably determines that such remedy is not eco- nomically or technically feasible, (ii) to obtain an equi- table partial or full refund of amounts paid with respect to the defective Software or services. (b) Liabilities. BITMOVER SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE TOTAL PORTION OF THE CONTRACT PRICE ACTUALLY PAID BY LICENSEE WITHIN THE THEN CURRENT TERM. IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAV- INGS, LOST PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAIN- ING TO THE SUBJECT MATTER OF THIS AGREEMENT. 13. Notices. Notices sent to either party shall be effective when delivered in person or transmitted by telecopier ("fax") machine, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid. A facsimile of this Agreement and notices generated in good form by a fax machine (as well as a photocopy thereof) shall be treated as "original" documents admissible into evidence unless a docu- ment's authenticity is genuinely placed in question. 14. Termination. Either party may, in addition to other relief, terminate this Agreement if the other party breaches any material provision hereof and fails within ten (10) days after receipt of notice of default to correct such default or to commence corrective action reasonably acceptable to the aggrieved party and proceed with due diligence to completion. Either party shall be in default hereof if it becomes insolvent, makes an assignment for the ben- efit of its creditors, a receiver is appointed or a petition in Bankruptcy is filed with respect to the party and is not dis- missed within thirty (30) days. Termination shall have no effect on the parties' rights or obligations to safeguard and respect Confidential Information under Section 10 ("Confidentiality"), Section 11 ("Warranties and Indemnification"), Section 12 ("Lim- itation of Remedies & Liabilities") or Section 18 ("Compliance with Export Regulations"). Immediately or termination of this License for any reason, Licensee shall destroy all copies of the Software. In the event that Licensee institutes patent and/or intellectual property litigation against BitMover with respect to the Soft- ware, then this Agreement and the rights granted hereunder will terminate automatically as of the date such litigation is filed. 15. Disputes, Choice of Law. Except for certain emergency judicial relief authorized under Section 10(e) ("Injunctive Relief") which may be brought at any time, the parties agree that all disputes between them shall first be subject to the procedures in Section 14 ("Termination") and then shall be submitted for informal resolution to their respective chief operating officers. Any remaining dispute involving less than one hundred thousand dollars ($100,000) shall be resolved by binding arbitration. The proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbi- trator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be binding upon the parties and enforceable in any court of competent jurisdiction. Disputes involving amounts exceeding the above dollar limit are not subject to arbitration and may be taken directly to court by either party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW, AND ANY ACTION SHALL BE INITI- ATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH DESIGNATED STATE. 16. Independent Contractor Status. Each party and its employees and agents are independent contrac- tors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employ- ment relationship between the parties. Each party shall remain responsible, and shall indemnify and hold harmless the other party, for the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social secu- rity, worker's compensation, unemployment, sickness and disabil- ity insurance taxes, payroll levies or employee benefit require- ments (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective employees and agents. 17. Security, No Conflicts. Each party agrees to inform the other of any information made available to the other party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Govern- ment, and shall return all such material upon request. Each party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obli- gation of the party or create any conflict of interest prohib- ited by the U.S. Government or any other government and shall promptly notify the other party if any such conflict arises dur- ing the Term. 18. Compliance with Export Regulations. Licensee has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authoriza- tions or approvals; shall indemnify and hold BitMover harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be devel- oped or provided herein. Licensee shall not directly or indi- rectly export or re-export (including by transmission) the Soft- ware to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement. 19. U.S. Government Restricted Rights. Software provided to the U.S. Government pursuant to solicita- tions issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solici- tations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. 20. Miscellaneous. This document and the accompanying attachments specifically ref- erenced herein constitute the entire agreement between the par- ties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Except as specifically per- mitted herein, neither this Agreement nor any rights or obliga- tions hereunder may be transferred or assigned by Licensee with- out BitMover's prior written consent and any attempt to the con- trary shall be void. BitMover reserves all rights not specifi- cally granted herein. Neither party shall be liable for delays caused by events beyond its reasonable control. Any provision hereof found by a tribunal of competent jurisdiction to be ille- gal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. Headings are for reference purposes only and have no substantive effect. CATEGORY Licensing BitMover, Inc 2002/09/22 1