Last Updated: March 29, 2011
PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION. BY CLICKING "I AGREE" BELOW OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR DOCUMENTATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT AUTHORIZED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE OR DOCUMENTATION.
1.CONDITIONS OF USE. You (the individual and/or entity on whose behalf you are using the Software) are permitted to download, install and use the Software and Documentation only if: (a) you have a signed, written license agreement ("License Agreement") with Kapow Technologies, Inc. or its subsidiary ("Kapow") or its authorized reseller, or (b) you are using the Software on a limited trial basis.
Any other use is strictly prohibited. If applicable, the License Agreement remains in full force and effect, and if this EULA is inconsistent with the License Agreement then the License Agreement controls and governs. You are responsible for reviewing and understanding the terms of the License Agreement to ensure your compliance.
2. LICENSE GRANT. Subject to the terms and conditions of this EULA, Kapow grants you a non-exclusive, non-transferable, royalty-free, limited license to internally use the Software for the time period authorized by Kapow in the license key ("Evaluation Period") solely to test and evaluate the Software to determine whether you desire to purchase a commercial license to the Software.
3. RESTRICTIONS. You are not otherwise permitted to use the Software and, in particular, are not permitted to use the Software for your own or a third party's commercial benefit or in the normal course of your business operations. You may not copy the Software or the Documentation except solely as necessary for your authorized use and provided that all proprietary notices in the original are retained. You may not, nor may you assist another to, modify, translate, convert to another programming language, decompile, reverse engineer, disassemble or otherwise attempt to discern the source code of the Software.
4. THIRD PARTY AND OPEN SOURCE CODE. The Software includes certain third party and other code, including, but not limited to, free and open source software (collectively, "Other Code") covered by other licenses ("Third Party Licenses"), as identified in the Third Party and Open Source Code License Terms available at http://help.kapowsoftware.com, and the Oracle License below, all as may be revised by Kapow from time to time. You should check the Third Party and Open Source Code License Terms periodically for changes. Your license to the Other Code is subject to the applicable Third Party License, even if contrary to this EULA. The terms and conditions of the Third Party Licenses do not apply to nor govern other parts of the Software or the Software as a whole. As required under the applicable Third Party License, Kapow makes available the source code for the applicable Other Code as described in the Documentation. If the Third Party and Open Source Code License Terms require you to have separately obtained rights from a third party in order to use any other Other Code, you represent and warrant that you have all such rights and agree to indemnify and hold harmless Kapow for your failure to do so.
5. OWNERSHIP. All right, title and interest, including all intellectual property rights, in and to the Software and Documentation are owned and reserved by Kapow and its licensors. No license or other right of any kind is granted to you except as expressly provided in this EULA or in the Third Party Licenses. Nothing in this EULA shall be construed as conferring any license or right with respect to any of Kapow's or its licensors' trademarks, trade names or brand names in any way.
6. CONFIDENTIALITY. You acknowledge and agree that Kapow is providing the Software under this EULA as a convenience to you, and that the Software, Documentation and information relating to the Software and Documentation are confidential and/or proprietary information of Kapow. You agree that you will not disclose to any third party, the Software or Documentation or any information regarding the Software's performance or your evaluation thereof, including any results of benchmarking, without Kapow's prior written consent. The Software, Documentation and information relating to these may be used only for the purposes authorized under this EULA.
7. TERM; TERMINATION. This EULA is effective from the time you accept this EULA until the Evaluation Period expires unless earlier terminated. Either party may terminate this EULA at any time by providing written notice to the other party. If you fail to comply with any term of this EULA, Kapow may immediately terminate this EULA upon notice to you. Upon any termination of this EULA, you shall cease all use of the Software and Documentation, destroy all copies of the Software and Documentation in your possession or under your control, and provide written notice of such destruction to Kapow. All provisions, other than Section 2, will survive any termination of this EULA.
8. NO ASSIGNMENT. You may not assign or otherwise transfer this EULA, the Software, Documentation or any of your rights in the foregoing, whether by operation or law or otherwise. Any unauthorized assignment or other transfer of any copy of the Software or Documentation is void and automatically terminates this EULA.
9. DISCLAIMER OF WARRANTIES. THE SOFTWARE, THE OTHER CODE, AND THE DOCUMENTATION ARE PROVIDED "AS IS." KAPOW AND ITS LICENSORS DISCLAIM ALL WAR-RANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRAN-TIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INFRINGEMENT. YOU BEAR ALL RISK RELATING TO YOUR USE OF THE SOFTWARE, THE OTHER CODE, AND THE QUALITY AND PERFORMANCE OF THE SOFTWARE, THE OTHER CODE AND DOCUMENTATION. Kapow does not warrant that the Software or the Other Code will meet your requirements, operate without interruption or be error free.
10. LIMITATIONS OF LIABILITY. KAPOW AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, LOSS-OF-PROFIT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CAUSED BY THE USE OF OR INABILITY TO USE THE SOFTWARE, THE OTHER CODE, OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, THE OTHER CODE, OR DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. GOVERNING LAW; JURISDICTION. This EULA will be governed by and construed under the laws of the State of California, without regard to its conflicts of law principles. The state and federal courts in Santa Clara County, California have exclusive jurisdiction and venue over any dispute arising out of or relating to this EULA. Each party consents to the personal jurisdiction and venue of these courts.
12. GENERAL PROVISIONS. This is the entire agreement between you and Kapow with respect to its subject matter and supersedes any prior or contemporaneous agreements regarding the same (except, as applicable, the License Agreement). If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. No waiver or modification of this EULA will be binding upon either party unless made in a writing signed by both parties and no failure or delay in enforcing any right will be deemed a waiver. All notices in connection with this EULA shall be deemed given (i) five days after being deposited in the mail, postage pre-paid, certified or registered, return receipt requested, (ii) one day after being sent by overnight courier, charges prepaid, with a confirming fax, (iii) or upon personal delivery; and addressed as set forth in this EULA or to such other address as the party to receive the notice so designates by written notice to the other. Notices to Kapow will be sent to the address below and Notices to you will be sent to the address you provided to Kapow as part of the download process.
13. EXPORT. You may not export the Software or Documentation outside of the United States without Kapow's prior and express written consent. You agree to comply fully with all laws and regula-tions of the United States and other countries ("Export Laws") to assure that neither the Software nor Documentation are exported, directly or indirectly, or used in violation of Export Laws.
14. U.S. GOVERNMENT RIGHTS. If you are the U.S. Government or a contractor or subcontractor (at any tier) of the U.S. Government and are licensing the Software for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, you acknowledge that by accepting delivery of the Software and Documentation, the Software qualifies as commercial computer software and commercial computer software documentation within the meaning of the acquisition regulations and contract clauses applicable to this procurement. The terms and conditions of this EULA are fully applicable to the Government's use and disclosure of the Software and Documentation and supersede any conflicting terms or conditions.
16. PATENTS. One or more patents or patents pending owned by Kapow may apply to the Software and/or its features and functionality. These patents or patents pending include the following: US Appl. No. 12/987,371, EP1342171, US7698277, US2009055727, EP1949262, HK1128839, US20090265420, EP2018757, EP1269347, US Appl. No. 10/240,463.
Copyright (C) 2004- 2014 Kapow Technologies, Inc. All rights reserved. Use is subject to license terms. Unauthorized duplication or distribution is strictly prohibited.
The Other Code includes the JDBC driver for Oracle ("Oracle Program"), which is subject to the following terms ("Oracle License"), on behalf of Oracle America, Inc. and its subsidiaries and affiliates under common control (collectively, "Oracle"):
License Rights: You are granted a nonexclusive, nontransferable, limited license to use the Oracle Program to run the Software for your own business operations. Oracle may audit your use of the Oracle Program.
Ownership and Restrictions: Oracle retains all ownership and intellectual property rights in the Oracle Program. You may make a sufficient number of copies of the Oracle Program for the licensed use and one copy of the Oracle Program for backup purposes. You may not: (i) use the Oracle Program for any purpose other than as provided in the "License Rights" above; (ii) distribute the Oracle Program, assign this Oracle License or give the Oracle Program, program access or an interest in the Oracle Program to any individual or entity; (iii) remove or modify any Oracle Program marking or any notice of Oracle's proprietary rights; (iv) use the Oracle Program to provide third party training on the content and/or the functionality of the Oracle Program, except for training your licensed users; (v) assign this Oracle License or give the Oracle Program, access to the Oracle Program or an interest in the Oracle Program to any individual or entity except as provided in the Oracle License; (vi) cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the Oracle Program; or (vii) disclose results of any Oracle Program benchmark tests without Oracle's prior consent.
Export: You agree that U.S. export control laws and other applicable export and import laws govern your use of the Oracle Program, including technical data; additional information can be found on Oracle's Global Trade Compliance web site located at http://www.oracle.com/products/export/index.html?content.html. You agree that neither the Oracle Program nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
Disclaimer of Warranty and Exclusive Remedies: THE ORACLE PROGRAM IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ORACLE AND KAPOW FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. IN NO EVENT SHALL ORACLE OR KAPOW BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S AND KAPOW'S ENTIRE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000).
No Technical Support: Oracle's technical support organization will not provide technical support, phone support, or updates to you for the Oracle Program.
End of Agreement: You may terminate this Oracle License by destroying all copies of the Oracle Program. Oracle or Kapow has the right to terminate your right to use the Oracle Program if you fail to comply with any of the terms of this Oracle License, in which case you shall destroy all copies of the Oracle Program.
Relationship between the Parties: The relationship between you and Oracle is that of licensor/licensee. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee or franchises, or in any other capacity. Nothing in this Oracle License shall be construed to limit either party's right to independently develop or distribute software that is functionally similar to the other party's products, so long as proprietary information of the other party is not included in such software.
Open Source: "Open Source" software –software available without charge for use, modification and distribution – is often licensed under terms that require the user to make the user's modification to the Open Source software or any software that the user ‘combines' with the Open Source software freely available in source code form. If you use Open Source software in conjunction with the Oracle Program, you must ensure that your use does not: (i) create, or purport to create, obligations of us with respect to the Oracle Program, or (ii) grant, or purport to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in the Oracle Program. For example, you may not develop a software program using an Oracle Program and an Open Source program where such use results in a program file(s) that contains code from both the Oracle Program and the Open Source program (including without limitation libraries) if the Open Source program is licensed under a license that requires any "modifications" be made freely available. You also may not combine the Oracle Program with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the Oracle Program or any modifications thereto to become subject to the terms of the GPL.
Third Party Beneficiary: Oracle is a third party beneficiary of the Oracle License.