DEVELOPER AGREEMENT

PLEASE READ THIS DEVELOPER AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO USE THE SOFTWARE AND BEFORE CLICKING ON THE "YES" BUTTON OR BREAKING THE SEAL OF ANY INSTALLATION DISKS.

INFORMIX SOFTWARE, INC. ("INFORMIX") IS WILLING TO LICENSE THE SOFTWARE AS DEFINED HEREIN (THE "SOFTWARE") TO YOU (THE "CUSTOMER") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THESE TERMS CAREFULLY BEFORE CLICKING ON THE "YES" BUTTON OR BREAKING THE SEAL OF ANY INSTALLATION DISKS. CLICKING ON THE "YES" BUTTON OR BREAKING THE SEAL WILL INDICATE YOUR AGREEMENT TO THESE TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, THEN INFORMIX IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD CLICK ON THE "NO" BUTTON TO DIS-CONTINUE THE INSTALLATION PROCESS OR RETURN THE INSTALLATION DISKS.
 
 

LICENSE TERMS


  1. LICENSE GRANT AND RESTRICTIONS.
  2. Informix hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable, revocable license to use the object code copy of the Software distributed with this Agreement (the "Copy") along with related documentation during the term of this Agreement, solely for Customer’s development purposes.Customer's use is limited to the authorized number of IM or CPU license(s) of the Software for which Customer has paid the applicable license fees as set forth in the Price List for such Software. Customer (a) may not copy, distribute, or otherwise deploy the Software or any other programs developed using the Software; (b) may not modify, disassemble, decompile or reverse-engineer the Software; (c) may not rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Software to any third party or use the Software to provide time sharing or similar services to any third party; and (d) may not delete the copyright and other proprietary rights notices on the Software. Any attempt by Customer to transfer any of the rights, duties or obligations hereunder except as expressly provided for in this Agreement shall be deemed null and void.
     
     
  3. SUPPORT.

  4. Customer may purchase maintenance support for the Software from Informix pursuant to Informix’s then current maintenance support program, at the price set forth in the then current Price List for such services.


  5. DISCLAIMER OF WARRANTIES.

  6. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, INFORMIX DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF NONINFRINGEMENT.


  7. OWNERSHIP & PUBLICITY.

  8. Customer agrees that Informix and/or its suppliers own and retain all right, title and interest in and to the Copy and the Software, including without limitation any and all copyrights, patents, trade secrets, trademarks and other intellectual property and proprietary rights therein. Customer agrees neither to publish any report or statement or make any public comment concerning the performance, features or functionality of the Software or that compares the Software to any other software, product or system nor authorize any such report, statement or comment, without Informix's prior written consent.


  9. LIMITATION OF LIABILITY.

  10. IN NO EVENT WILL INFORMIX BE LIABLE TO CUSTOMER OR ANY OTHER PARTY, AND CUSTOMER EXPRESSLY ASSUMES ALL RESPONSIBILITY, FOR DAMAGES OF ANY KIND ARISING FROM USE OF THE SOFTWARE, WHETHER RESULTING FROM TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHER FORM OF ACTION, INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF ANY KIND, ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INFORMIX'S TOTAL LIABILITY, IF ANY, UNDER THIS AGREEMENT WILL BE LIMITED TO THE LICENSE FEE PAID BY CUSTOMER FOR THE SOFTWARE.


  11. TERMINATION.

  12. Informix will have the right to terminate this Agreement if Customer breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days of written notice from Informix. Upon termination of this Agreement, the rights and licenses granted to Customer under this Agreement shall automatically terminate. Within five (5) days after termination, Customer will destroy all copies of the Software and documentation in Customer's possession. Upon request, Customer will certify to Informix that all copies of the Software have been destroyed. The exercise by Informix of any remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The rights and obligations of the parties under Sections 3, 4, 5, 6, and 8 will survive the expiration or termination of this Agreement for any reason.


  13. GOVERNMENT LICENSEE.

  14. If the Software is licensed by or for any unit or agency of the United States Government, then the Software shall be classified as "commercial computer software", as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements thereto, including the Department of Defense ("DoD") FAR Supplement (the "DFARS"). Informix represents that the Software was developed entirely at private expense, and that no part of the Software was first produced in the performance of a United States Government contract. If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c)(1)(ii) (OCT 1988), as applicable. If the Software is supplied for use by a Federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable.


  15. EXPORT CONTROL.

  16. Customer acknowledges that the Software, including technical data, are subject to the United States export control laws.Customer will comply with such applicable export laws, obtain any applicable export licenses, and it will not export or re-export directly or indirectly (including via remote access) any part of the Software and/or technical data to Cuba, Iran, Iraq, Libya, North Korea, Serbia, and Sudan, and/or to any other country that may become subject to an embargo by the United States. Customer also may not export and/or re-export the Software, including technical data, to individuals and companies listed on the U.S. Department of Commerce's Denied Parties List and the Entity List, on the U.S. Department of Treasury's Specially Designated Nationals Lists, or any other list of parties proscribed by the U.S Government. In addition, Customer may not export and/or re-export the Software and technical data, if it knows or has reason to know that end-user is engaged in the design, development and use of nuclear, chemical and biological, and/or missile technology activities.


  17. GOVERNING LAW.

  18. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Customer hereby consents to the personal and exclusive jurisdiction and venue of the state and federal courts located in the Northern District of California.


  19. AUDIT.

  20. Upon thirty (30) days prior written notice, Informix shall have the right to inspect Customer's records and systems related to Customer's use of the Software to ensure that Customer complies with the terms of this Agreement. Such audit will be conducted during Customer's regular business hours, and will occur no more than once annually. The costs of conducting an audit will be paid by the Customer if the audit discloses that Customer is using unauthorized copies of the Software. Customer must also pay Informix for such unauthorized copies of the Software being used by Customer.


  21. DEFINITIONS.

  22. “CPU” means central processing unit microprocessor in a system.

    “IM” means Installed Machine. Each machine or computer where the Software will be installed shall require a single unique IM license. The Software may be used only on a single computer owned or leased, or otherwise controlled by Customer; or in the event of the inoperability of that computer, on a backup computer selected by Customer. Neither concurrent use on two or more computers nor use in a local area network or other network is permitted.

    “Price List” means the Informix price list for the United States and Canada, in effect at the time Customer order Software from Informix. The price for Software deployed within the United States and Canada shall be as set froth in the Price List. The price for Software deployed outside the United States and Canada shall be 1.25 times the price set forth in the Price List.

    “Software” means Cloudscape, Cloudsync, Cloudconnector, or other products in the Cloudscape product family, made generally commercially available by Informix.


  23. MISCELLANEOUS.

  24. This Agreement constitutes the complete and exclusive agreement between the parties with respect to its subject matter, and supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. Any modifications of this Agreement must be in writing signed by both parties. This Agreement will bind and inure to the benefit of each party's successors and assigns, provided that Customer may not assign this Agreement, in whole or in part, without Informix's prior written consent. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. The parties agree that that the terms and conditions contained herein shall prevail notwithstanding any variations on any purchase order, invoice or other documentation submitted by Customer. No purchase order, invoice or similar document will by its terms amend or supplement the terms and conditions of this Agreement, even if accepted or signed by the receiving party.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.