ACTIVESTATE BUSINESS EDITION LICENSE & SUPPORT AGREEMENT

Updated: January 2012

Standard Terms & Conditions of Sale
THE TERMS AND CONDITIONS SET FORTH BELOW CONSTITUTE THE ENTIRE AGREEMENT BETWEEN ACTIVESTATE SOFTWARE INC. (“ACTIVESTATE”) AND LICENSEE WITH RESPECT TO THE SOFTWARE AND SERVICES, UNLESS OTHERWISE AGREED TO IN WRITING BY ACTIVESTATE. In the event that the Licensee issues any form of order to ActiveState authorizing the purchase of the Product(s), it is agreed that such order is issued exclusively for the purpose of confirming the Licensee's purchase of the specified item(s) and the price(s) thereof and that NO OTHER TERMS AND CONDITIONS SPECIFIED OR PREPRINTED ON LICENSEE'S ORDER SHALL ADD TO OR MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT, nor shall such order terms and conditions affect either party’s responsibility to the other party as set forth herein. A LICENSEE PURCHASE ORDER OR LICENSEE PAYMENT ACCEPTED BY ACTIVESTATE SHALL CONSTITUTE LICENSEE ACCEPTANCE OF ACTIVESTATE’S OFFER SUBJECT SOLELY TO THESE STANDARD TERMS & CONDITIONS OF SALE. ActiveState reserves the right to reject any Licensee order. ACTIVESTATE WOULD NOT BE ABLE OFFER THE SOFTWARE ON AN ECONOMIC BASIS ON TERMS OTHER THAN THESE STANDARD TERMS & CONDITIONS OF SALE. If the Licensee does not agree with the terms of Standard Terms & Conditions of Sale, please DO NOT USE THE SOFTWARE and promptly return the Software and any accompanying items (including ANY written materials and packaging) to ActiveState together with proof of purchase for a full refund.

1.    Definitions

“ActiveState” means ActiveState Software Inc., a British Columbia corporation.

“Authorized Machine” means a single instance of the Software on a single instance of the operating system.

“Authorized Use” means the defined number of copies or instances of the Software that may be used by the Licensee, and where applicable, limited to the number of Authorized Machines, as designated in the Quote/Invoice issued by ActiveState.

“Quote/Invoice” means the ActiveState offer whether it is made by website, e-commerce receipt/invoice, or document issued by ActiveState directly to or through a third party reseller to Licensee offering an ActiveState Business Edition license and services, together with supported extensions (if any) for the term, price(s) and “Ship to” Licensee location(s) described therein.

“Licensee” means the purchaser of an ActiveState Business Edition license and services from ActiveState identified in the Quote/Invoice referencing this Standard Terms and Conditions of Sale document (the “Agreement”)

“Intellectual Property Rights” means all present and future patent, copyright, confidential information, database rights, rights in designs, know-how, mask works, trademarks, service marks, trade and business names, domain names, trade secrets and any other similar rights in any country, whether registered or not and including all applications for such rights, throughout the world including all extensions and renewals.

“Software” means the ActiveState Business Edition licensed software identified in the Quote/Invoice and purchased and delivered to Licensee hereunder. Such term shall include the guides and manuals for use of such Software (the “Documentation”).

“Supported Version” means the most current supported version of the Software identified on ActiveState’s website.

“Trademarks” means the trademarks registered or applied for by ActiveState and/or its affiliated and parent company(ies).

2.    License Grant

ActiveState hereby grants to Licensee and Licensee hereby accepts, a worldwide, non-exclusive, non-sublicensable right and license to use the Software as defined by the Authorized Use during the Term of the Agreement. Licensee agrees not to copy (except for archival purposes) or distribute, adapt, alter, amend, modify, reverse engineer, decompile, disassemble or decode the Software. Except to the extent expressly authorized by ActiveState, Licensee shall not remove, delete or in any manner alter the splash screens, ActiveState’s Trademarks or other Intellectual Property Rights notices of ActiveState and/or its licensors, if any, appearing on the Software as delivered to Licensee. Subject to the Assignment provisions herein, Licensee may make a one-time permanent transfer of all of its license rights to the Software(s) to another party, provided that: (a) the transfer must include all of the Software, including all its component parts, original media, printed materials and this Agreement; (b) Licensee does not retain any copies of the Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Software reads and agrees to accept the terms and conditions of this Agreement.

The Software is permitted to be used as either a bundled add-on to, or embedded component of, another application with such application being limited to: i) users within Licensee’s own organization for internal use and or internal business operation purposes, ii) a hosted application, iii) a Software-as-a-Service offering or a subscription service, or iv) a component of another application and being distributed as an on-premise application to a third party of the Licensee.

If the purchaser has ActiveState Community Edition software license(s) in force, then the Community Edition software license(s) are made a part of this Agreement by cross reference. Where there is a conflict in meaning between this Agreement and any in force Community Edition software license(s), then the meaning set out in this Agreement shall take precedence.

3.    Support Services

Delivery of the Software shall be via Licensee download from the ActiveState website.
ActiveState support representatives will provide email support services TO A MAXIMUM OF ONE (1) LICENSEE CONTACT in respect of the Supported Version of the Software, Monday to Friday, 8am to 5pm PST, excluding US Federal holidays. ActiveState will make commercially reasonable efforts to respond to each support request within two business days of the Licensee request. Support inquiries should be addressed to Business-Support [at] ActiveState [dot] com (subject: re%3A%20Business%20Edition%20License%20%26%20Support%20Agreement) .

ActiveState provides support services only for the Software for which the Licensee has a legitimate license in order to obtain such support services.  Such support services include support for the build, installation, usage, configuration, and diagnosis (dependent on ActiveState’s product life cycle) of the Software. ActiveState support services are limited to:
•    Correction and or access to material errors, updates, upgrades, security advisories and bug fixes for the Software, when and if binary builds are available from ActiveState.
•    Providing online access to allow the Licensee to obtain Software patch level updates and to access available archival versions.

4.    Support Services Restrictions

ActiveState reserves the right, at its sole discretion, to limit or cancel support services: (1) for any module, extension, script or other software program that has become obsolete or has been superseded by more recent modules, extensions, scripts or programs or (2) upon the discontinuance of support by the manufacturer of a platform, to limit or cancel support for such platform (the “Archived Platform”). In such case, ActiveState will provide Licensee with the most recent stable version of the Software for the Archived Platform, so long as Licensee is current in payment of its fees under this Agreement. Licensee acknowledges that Software support service including that for an Archived Platform may, at ActiveState’s sole discretion, be limited to ActiveState’s commercially reasonable efforts and that major fixes may no longer be possible. Further, ActiveState reserves the right to offer support services only for matters that in its sole discretion are commercially reasonable in context to the scope and intent of the ActiveState Business Edition services.  ActiveState will provide support solely to Licensee’s (1) one designated contact. Only Software designated as ActiveState Business Edition Software shall be supported under this Agreement. ActiveState is not obligated to provide support services under this Agreement related to: Software design, system design, network design, architectural design, code development, optimizations, tuning recommendations, development or implementation of security rules or policies or for third party software/modules/packages made available with the Software.  ActiveState does not provide support services for Software that Licensee has modified.  For example, ActiveState does not provide support for modified packages or modified source code. Licensee is responsible for testing the Software before deploying it in Licensee’s production environment. ActiveState is not obligated to fix any identified support service issue covered under section 3 above, its obligation is limited to response and diagnosis of the support services issue as specified.

ACTIVESTATE WILL NOT PROVIDE SUPPORT TO LICENSEE’S THIRD PARTY CUSTOMERS.

5.    Fees

Unless otherwise agreed in writing, Licensee will pay ActiveState within 30 days of receipt of ActiveState’s invoice. All payments, fees and other charges payable by Licensee to ActiveState under this Agreement are exclusive of all taxes, levies and assessments of any jurisdiction. Licensee agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed on Licensee or ActiveState arising out of this Agreement, excluding any tax based on ActiveState’s net income. If Licensee is required to pay ActiveState a lower amount under this Agreement because of any withholding or tax, Licensee shall pay to ActiveState such grossed-up amount as would be necessary to provide ActiveState the full amount of the fees absent any withholding tax imposed on amounts payable hereunder

6.    Term and Renewal

The term of this Agreement shall be for one (1) year and shall commence as of the date of purchase (“Term”).  At the end of the Term this Agreement will automatically terminate unless the Licensee renews the Agreement by purchasing another term.  Such term renewal is permitted only if the Licensee is compliant with all of its obligations under this Agreement.

7. Re-instatement Policy

In the event that the Software license lapses or has expired and Licensee then desires to reinstate such license, the Licensee may do so by paying ActiveState the current standard Software license fees for the re-instated 12-month period (the “Renewal Fee”) plus a re-instatement fee equal to the current standard Software license fees that would have been invoiced during the lapsed or unlicensed period (the “True-up Fees”) plus an additional 50% late fee of the total Trueup Fees (the “late fee”).

8.    Limited Software Warranty and Remedy

For the Term of this Agreement provided the Licensee is current in payment of all fees, taxes and charges hereunder (the “Warranty Period”) ActiveState warrants to Licensee that the Software as delivered to Licensee: (1) is compatible with the operating systems identified in the Documentation; (2) will operate in conformance with all Documentation and specifications applicable thereto; (3) does not contain any known viruses, routines, programs or devices that could interfere with Licensee’s use thereof and that ActiveState will take all commercially reasonable precautions to detect and remove any such viruses, routines, programs or devices from the Software prior to delivery to Licensee; and (4) does not include any timer, clock, counter or other limiting mechanism that would allow ActiveState to disable the Software or cause the Software to be erased, inoperable or otherwise incapable of being used by Licensee. If ActiveState is advised that the Software is not operating in conformance with all Documentation and specifications applicable thereto during the Warranty Period, then ActiveState will respond to the error within the applicable time period described in Section 3 entitled “Support Services” above and subject to the limitations described in Section 4 entitled, “Support Services Restrictions”

THE WARRANTIES SET OUT IN HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES AND ACTIVESTATE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES AS TO THE PERFORMANCE OR SUITABILITY OF THE SOFTWARE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES EXCLUDE AND DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE.

9.    Conditions of Warranty

The warranties set out in Section 7 are void and have no application with respect to any error: (1) that results from use by Licensee of the Software in an environment other than that recommended by ActiveState; (2) that results from any modifications to the Software made by Licensee that are not authorized by ActiveState or, if such authorization is granted, are made using software other than ActiveState recommended software; (3) caused by any bug, defect, virus or error in the build process used to create the Software; or (4) caused by any bug, defect, virus or error in other software or hardware used with Software. In the event of breach of the warranties set forth in this Agreement, ActiveState’s exclusive liability and Licensee’s sole remedy for breach thereof shall be (at ActiveState’s option) to correct or replace the Software and/or the Documentation within a reasonable time or to refund the total fees paid to ActiveState by Licensee in the relevant contract year and terminate this Agreement. ActiveState shall only be liable under this limited warranty where ActiveState is notified in writing of the breach of warranty within the Warranty Period. Notwithstanding the foregoing, ActiveState may at its option provide email and/or telephone support to Licensee with respect to issues which are outside the scope of the limited warranty described in Section 7 and Section 8.

10.    Limitation of Liability

NOTWITHSTANDING ANY OF THE PROVISIONS IN THIS AGREEMENT, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL ACTIVESTATE OR ANY OF ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, ANY CLAIMS MADE BY END USERS AGAINST LICENSEE, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF ACTIVESTATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL ACTIVESTATE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED IN THE AGGREGATE THE AMOUNT OF THE PURCHASE PRICE PAID FOR THE SOFTWARE LICENSE.

11.    Ownership

ActiveState shall retain all rights, title and interest in and to the Software, ActiveState’s Trademarks and all Intellectual Property Rights therein. Licensee shall not obtain or claim any rights or interest in the Software, the Trademarks or any Intellectual Property Rights therein, except as otherwise set forth in this Agreement. Licensee shall not apply for or register as trademarks or domain names any trademarks or domain names identical or confusingly similar to the Trademarks or other Intellectual Property Rights anywhere in the world. In the event that Licensee makes suggestions to ActiveState regarding new features, functionality or performance (“Improvements”) that ActiveState adopts for the Software for general commercial release, such Improvements shall become the sole and exclusive property of ActiveState. Licensee hereby assigns to ActiveState any and all rights, title and interest it might have in and to any such Improvements and all Intellectual Property Rights therein. Licensee will execute or procure the execution of all such documents as may be required to assign such rights, title and interest to ActiveState.

12.    Termination by either Party

Either party may terminate this Agreement immediately upon written notice to the other party if: (1) the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice from the other party specifying the breach and requiring the breach to be remedied; (2) a resolution has been passed authorizing the issue of a notice (or a notice has been issued) convening a meeting of shareholders to consider a resolution for, or a petition has been presented (and not set aside within seven days of its presentation) for, the winding-up of the other party or the other party goes into liquidation (other than a winding-up for the purposes of a solvent amalgamation or reconstruction the terms of which have previously been approved in writing by the other party and in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the obligations imposed on the relevant party under this Agreement) or the other party has taken or suffered any similar action or procedure due to debt; or (3) the other party has been dissolved.   In the event of termination of any kind no refunds will be made for sums previously paid - regardless of the timing of the termination.

13.  Effect of Termination

Upon termination or expiration of this Agreement, ActiveState shall no longer be obligated to provide support to Licensee. Termination of this Agreement shall not relieve Licensee of its obligations to pay all fees that have accrued or are otherwise owed by Licensee to ActiveState. Clauses 2, 5, 9, 10 and 13 shall survive termination of this Agreement. Termination of this Agreement by either party in accordance with its terms shall not give the other party any right to compensation, damages, loss of profits or prospective profits of any kind or nature whatsoever, and in no circumstances shall the Licensee acquire against ActiveState any goodwill in respect of its appointment as Licensee or in respect of the Software or their distribution or sale, or otherwise under or in respect of, this Agreement.

14. General Provisions

Notices. Any notice under or in connection with this Agreement shall be in writing and shall be delivered by hand, or sent by first class post (or by airmail if sent abroad) or by fax or by email as follows: if to ActiveState, to the following address: 1700 - 409 Granville Street, Vancouver, BC, V6C 1T2 Canada, to legal [at] ActiveState [dot] com or to fax number 778.786.1133 (marked for the attention of the Head of Legal); if to Licensee, to the address, email and/or fax number set out in the Quote/Invoice or to such other person, address or fax number as either party may specify to the other from time to time by notice given in accordance with this Agreement, provided that any party giving any notice by fax shall also send a copy of that notice by post, which shall be placed in the post by that party on the date of transmission of the fax or the next business day thereafter.

Relationship Between the Parties. Each party is an independent contractor of the other; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.

Export Controls. Licensee agrees to comply with all export laws and restrictions and regulations of Canada, the United States or foreign agencies or authorities, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Software from the U.S. Neither the Software nor the underlying information or technology may be electronically transmitted or otherwise exported or re-exported (i) into Belarus, Myanmar (Burma), Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to Canada or U.S. trade sanctions covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on Canada’s Area Control List of the Export and Import Permits Act, or; (iii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that it complies with these conditions.

Governing Law. The laws of the State of New York shall govern this Agreement and all matters arising out of or relating to this Agreement. The courts of the State of New York shall have non-exclusive jurisdiction in connection with any dispute under this Agreement.

Injunctive Relief. Each party acknowledges and agrees that any breach of its obligations with respect to confidential information and Intellectual Property Rights would cause substantial harm to the other party that could not be remedied by payment of damages alone. Accordingly, the party will be entitled to preliminary and permanent injunctive relief in any jurisdiction where damage may occur in addition to all other remedies available to it for any such breach.

Construction. The headings in this Agreement are for purposes of convenience only and shall not affect the meaning or construction of the clauses to which they relate. Any use in this Agreement of words denoting the singular include the plural and vice versa.

U.S. Government End-Users. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of Canada and the United States.

Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof that cannot be amicably settled by the parties after serving notice, shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Vancouver, BC, Canada, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of New York, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.

Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other. This provision shall not apply to the performance of payment.
 
Publicity Rights.  The Licensee grants ActiveState the right to include the Licensee name and logo as a customer in Software promotional material. Licensee can deny ActiveState this right at any time by submitting a written request via email to sales [at] activestate [dot] com, requesting to be excluded from Software promotional material. Requests made after purchasing may take up to thirty (30) calendar days to process.

Assignment. Neither this Agreement nor any rights granted hereunder, nor the use of any of the Software may be assigned, or otherwise transferred, in whole or in part, by Licensee, without the prior written consent of ActiveState. ActiveState may assign this Agreement in the event of a merger or sale of all or substantially all of the stock of assets of ActiveState without the consent of Licensee. Any attempted assignment will be void and of no effect unless permitted by the foregoing. This Agreement shall inure to the benefit of the parties permitted successors and assigns.

Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

Waiver. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other or subsequent right or remedy.

Entire Agreement. This Agreement together with any Quote/Invoice which makes reference to this Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement, appendices and attachments. ActiveState reserves the right to change this Agreement at any time, which change shall be effective immediately upon its posting to the ActiveState website. Licensee’s continued use of the Software and or support services after the effective date of such changes constitutes Licensee’s acceptance of such changes.  This Agreement may not be changed or canceled without ActiveState's prior written agreement. Licensee agrees to periodically review this Agreement. To make Licensee’s review of this Agreement more convenient, ActiveState will post a version effective date at the beginning of this Agreement.

United Nations Convention of Contracts. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The parties agree that the Uniform Computer Transactions Act or any version thereof, adopted by any state, in any form ("UCITA"), shall not apply to this Agreement, and to the extent that UCITA may be applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.