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ActiveState® Stackato® Micro Cloud License Agreement
Version effective date: June 30, 2014
Subject to the Agreement herein, Stackato Micro Cloud can be used:
- As a single node only, limited to 4GB or less of memory
- As multiple nodes, limited to a combined 20GB or less of memory, provided You have installed a valid Free License Key (as defined below)
The Stackato Micro Cloud is provided without any technical support; however you can participate in ActiveState's community forums, mailing lists and leverage ActiveState's extensive technical documentation on our websites. To use Stackato beyond the limits of (1) and (2) above, to redistribute Stackato, or if you require a supported version of Stackato, you require a different license agreement.
For more information on the various editions, support options and/or redistribution available to you please visit www.activestate.com/stackato. This license establishes the terms under which Stackato Micro Cloud may be used, copied, modified, distributed and/or redistributed. The intent of this license is that ACTIVESTATE maintains control over the development and distribution of the Stackato Micro Cloud, while allowing its use in a variety of ways. If the terms of this license do not permit your proposed usage or if you require clarification regarding your intended use of the Stackato Micro Cloud, please contact stackato-sales [at] activestate [dot] com.
ACTIVESTATE SOFTWARE INC. ("ACTIVESTATE") IS WILLING TO LICENSE THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONDITIONS SET OUT IN THIS SOFTWARE LICENSE AGREEMENT. PLEASE READ THE AGREEMENT CAREFULLY. BY INSTALLING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" SHALL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THIS AGREEMENT, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN ACTIVESTATE IS UNWILLING TO LICENSE THE SOFTWARE, AND YOU SHALL NOT INSTALL THE SOFTWARE.
- Parties. The parties to this Agreement are you, the licensee ("You") and ACTIVESTATE. If You are not acting on behalf of Yourself as an individual, then "You" means Your company or organization. A company or organization shall in either case mean a single business entity, and shall not include its affiliates or wholly owned subsidiaries.
- The Software.
- The Stackato virtual machine image, Stackato server, Stackato client, and any and all accompanying materials including, but not limited to, source code, binary executables, documentation, images, and scripts, which are distributed by ACTIVESTATE, and derivatives of that collection and/or those files are referred to herein as the "Software".
- The Software includes open source software components, each of which is licensed to You under its own applicable license terms and conditions, which You will find in the license file or the corresponding source files for such software component.
- The Software includes some GPL-licensed object code. Sources for those files can be downloaded from http://www.activestate.com/stackato/gpl-downloads.
- License Grant for the Software.
- The Software is licensed, not sold. You are granted a non-exclusive, non-transferable license, without rights to sublicense, to install and use the Software subject to the terms and conditions contained herein.
- You may: (i) copy the Software for archival purposes; (ii) copy the Software for personal use purposes; or (iii) use, copy, and distribute the Software solely for Your organization's internal use including copying the Software to other computers or workstations inside Your organization.
- You are permitted to modify the Accessible Code to develop bug fixes, customizations, or additional features, solely for the purpose of using the Software pursuant to this Agreement. "Accessible Code" means source code contained within the Software that is under an open source license.
- Restrictions. Except as expressly provided herein:
- The Software is licensed for use as either:
- On a single node only (e.g. single virtual machine), limited to 4GB or less of memory.
- As multiple nodes, limited to a combined 20GB or less of memory, provided You have installed a valid Free License Key.
- You may not: (i) sell, lease, assign, license, sublicense, or otherwise transfer in whole or in part the Software; (ii) modify or translate the Software; (iii) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law; (iv) create derivative works based on the Software; (v) merge the Software with another product; (vi) copy the Software; (vii) remove or obscure any proprietary rights notices or labels on the Software; (vii) redistribute the Software.
- You may not distribute the Software via OEM Distribution (as defined below) without entering into a separate OEM Distribution Agreement with ACTIVESTATE. "OEM Distribution" means distribution and or use of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription service for which the distributor of the application receives a license fee or any form of direct or indirect compensation.
- ACTIVESTATE encourages You to promote use of the Software. However this Agreement does not grant permission to use the trade names, trademarks, service marks, or product names of ACTIVESTATE, except as required for reasonable and customary use in describing the origin of the Software. In particular, You cannot use any of these marks in any way that might state or imply that ACTIVESTATE endorses Your work, or might state or imply that You created the Software covered by this Agreement.
- Free License Key. "Free License Key" means a unique serial number that You must request by signing up for an ActiveState single sign-on account and obtaining such unique serial number and inputting it into the Software where requested. This Free License Key allows for the Software to be used on more than one node and/or with more than 4GB memory. The Free License Key allows for the Software to be used on multiple nodes with a combined total of 20GB or less of memory and expires after one year (upon which it may be renewed if the offer is still available). The Free License Key is limited to one per organization or distinct business unit within an organization and cannot be combined with any other offer. ActiveState reserves the right to withdraw this offer at any time.
- Termination. ActiveState may terminate this Agreement immediately upon notice if You fail to comply with any term of this Agreement. In the event of termination, You must remove and destroy all copies of the Software including all backup copies, from the server and all computers and terminals You own, possess or control and on which the Software is installed.
- Ownership. ACTIVESTATE and its suppliers own 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 Canada and United States copyright laws and international treaty provisions. This Agreement provides You only a limited use license, and no ownership of any intellectual property.
- Infringement Indemnification. You shall defend or settle, at Your expense, any action brought against ACTIVESTATE based upon the claim that any modifications made by You to the Software or combination of the Software with products infringes or violates any third party right; provided, however, that: (i) ACTIVESTATE shall notify Licensee promptly in writing of any such claim; (ii) ACTIVESTATE shall not enter into any settlement or compromise any such claim without Your prior written consent; (iii) You shall have sole control of any such action and settlement negotiations; and (iv) ACTIVESTATE shall provide You with commercially reasonable information and assistance, at Your request and expense, necessary to settle or defend such claim. You agree to pay all damages and costs finally awarded against ACTIVESTATE attributable to such claim.
- Limited Warranty. NEITHER ACTIVESTATE NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND ACTIVESTATE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. YOU ASSUME THE ENTIRE RISK OF SELECTION, INSTALLATION, AND USE OF THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
- Local Law. If implied warranties may not be disclaimed under applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. Some jurisdictions do not allow limitations on how long an implied warranty may last, so the above limitations may not apply to You. This warranty gives you specific rights, and You may have other rights which vary from jurisdiction to jurisdiction.
- Limitation of Liability. INDEPENDENT OF THE FORGOING PROVISIONS, 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 YOU 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, 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'S 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.
- Export Controls. You agree 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 Canada or 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, You agree to the foregoing and represent and warrant that it complies with these conditions.
- 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.
- Licensee Outside The U.S. If You are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); and (ii) You are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and You represent that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
- Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
- 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 shall be submitted to and be 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 Province of British Columbia, Canada 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.
- Jurisdiction and Venue. The courts of Vancouver in the Province of British Columbia, Canada and the nearest British Columbia provincial court shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement.
- 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.
- Assignment. Except as expressly provided herein 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.
- Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. ACTIVESTATE reserves the right to change this Agreement at any time, which change shall be effective immediately upon its posting into any future release of the Software. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be construed under the laws of the Province of British Columbia, Canada, excluding rules regarding conflicts of law. 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.