EMBARCADERO TECHNOLOGIES, INC. LICENSE TERMS
DELPHI® 2009 ARCHITECT
DELPHI® 2009 ARCHITECT ACADEMIC
DELPHI® 2009 ENTERPRISE
DELPHI® 2009 ENTERPRISE ACADEMIC
DELPHI® 2009 PROFESSIONAL
DELPHI® 2009 PROFESSIONAL ACADEMIC
C++BUILDER® 2009 ARCHITECT
C++BUILDER® 2009 ARCHITECT ACADEMIC
C++BUILDER® 2009 ENTERPRISE
C++BUILDER® 2009 ENTERPRISE ACADEMIC
C++BUILDER® 2009 PROFESSIONAL
C++BUILDER® 2009 PROFESSIONAL ACADEMIC
NOTICE: THIS EMBARCADERO SOFTWARE PRODUCT (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, THE "PRODUCT") IS THE PROPERTY OF EMBARCADERO TECHNOLOGIES, INC (“EMBARCADERO”) . THE PRODUCT IS MADE AVAILABLE TO YOU, THE ORIGINAL PURCHASER, SUBJECT TO THE FOLLOWING LICENSE AGREEMENT ("LICENSE"). PLEASE READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR USING THE PRODUCT. A COPY OF THIS LICENSE IS AVAILABLE FOR YOUR FUTURE REFERENCE IN THE "LICENSE.RTF" FILE PROVIDED WITH THE PRODUCT.
YOU MAY ACCEPT THIS LICENSE BY INDICATING YOUR ACCEPTANCE BELOW. YOU MAY REJECT THIS LICENSE, AND TERMINATE THIS INSTALLATION PROCESS, BY INDICATING YOUR REJECTION OPTION BELOW. IF YOU DO NOT ACCEPT THIS LICENSE, THEN YOU MAY NOT INSTALL OR USE THE PRODUCT. IN THAT CASE, YOU MAY, WITHIN TEN (10) DAYS AFTER YOU FIRST RECEIVED THE PRODUCT, RETURN IT TO EMBARCADERO OR YOUR EMBARCADERO AUTHORIZED RESELLER, ALONG WITH ITS ORIGINAL PACKAGING AND PROOF-OF-PURCHASE, FOR A FULL REFUND. ANY USE BY YOU OF THIS PRODUCT ALSO CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.
Embarcadero is only willing to grant you this License if you obtained the Product from Embarcadero or an Embarcadero authorized reseller. If you obtained the Product from any other source you may not install or use the Product.
1. OWNERSHIP. The Product is proprietary to Embarcadero. The Product is licensed, not sold, to you notwithstanding any reference herein to "purchases." You acknowledge and agree that: (a) the Product is protected under U.S. copyright and other laws; (b) Embarcadero and its licensors retain all copyrights and other intellectual property rights in the Product; (c) there are no implied licenses under this License, and any rights not expressly granted to you hereunder are reserved by Embarcadero; (d) you acquire no ownership or other interest (other than your license rights) in or to the Product; and (e) Embarcadero owns all copies of the Product, however made. You agree that you will not, at any time, contest anywhere in the world Embarcadero's ownership of the Product, nor will you challenge the validity of Embarcadero's rights in the Product. You have no rights hereunder to use any trademark or service mark belonging to Embarcadero.
2. GRANT OF LICENSE AND SCOPE OF USE.
2.1 Licenses. You will have a license to one and only one of the Products and associated versions identified above for each license that you purchase. For each license that you acquire to use the Product, you will be provided with a License Certificate (a "License Certificate"), which may be either a certificate, the installation and licensing instructions, your invoice, or an activation file and which may be provided to you either with the Product media or separately by Embarcadero or its authorized distributors or resellers. The License Certificate will contain information specific to the Product licensed (C++Builder or Delphi), the edition of the Product that you have licensed (Architect, Architect Academic, Enterprise, Enterprise Academic, Professional, Professional Academic), the type of license under which you may use the Product and the number of licenses that you have acquired. In order to activate and use the Product as set forth in this License, you must follow the instructions when prompted by the Product. The types of licenses you may acquire are an Evaluation License, a Concurrent User License or a Named User License, all defined in this Section 2 of this License. Unless your License Certificate identifies your acquisition of another license type, you have acquired a Named User License. For more information on which license types, if any, should be included with the Product media you should contact Embarcadero or your Embarcaderoauthorized distributor or reseller.
2.2 Evaluation License. The terms of this Section 2.2 are applicable to you only if you have acquired an Evaluation License for the Product directly from Embarcadero or an Embarcadero authorized distributor or reseller. In order to evaluate the Product, you may install the Product, as outlined below, on a temporary basis for trial, evaluation, non-commercial purposes only (the "Evaluation Period"). The Evaluation Period is limited to the greater of the period of time specified to you by Embarcadero or thirty (30) days from the date the Product is installed. At the end of the Evaluation Period your license to use the Product expires. During the Evaluation Period, Embarcadero grants you the personal, nonexclusive, nontransferable and limited license to use the Product solely for evaluation purposes. THE PRODUCT CONTAINS A TIME-OUT FEATURE THAT DISABLES ITS OPERATION AFTER THE EXPIRATION OF THE EVALUATION PERIOD. APPLICATIONS THAT YOU CREATE DURING THE EVALUATION PERIOD MAY REQUIRE THE PRODUCT IN ORDER TO RUN. UPON EXPIRATION OF THE EVALUATION PERIOD, THOSE APPLICATIONS MAY NO LONGER RUN. YOU SHOULD THEREFORE TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT. In order to use the Product after the Evaluation Period, you must obtain from Embarcadero, or its authorized distributors or resellers a License Certificate outlining the number and type of grants of a license to use the Product in accordance with the terms and conditions of this License. You may not use the Product during the Evaluation Period for any commercial, business, governmental or institutional purpose of any kind. At the end of the Evaluation Period, further use of the Product by you is prohibited without the purchase of a commercial license to obtain a License Certificate. If you do not purchase a license for the Product at the end of the Evaluation Period, you hereby agree to permanently remove or delete the Product from all computer systems, including Servers, as defined below, and workstations, on which it was installed and destroy any software and documentation received, and not to reinstall the Product. If you desire to continue to use the Product following the Evaluation Period, you should contact Embarcadero or an Embarcadero authorized distributor or reseller to order commercial licenses to use the Product.
2.3 Named User License. The terms of this Section 2.3 are applicable to you only if you have acquired a Named User License, as defined below, for the Architect, Architect Academic, Enterprise, Enterprise Academic, Professional or Professional Academic edition of the Product, directly from Embarcadero or an Embarcadero authorized distributor or reseller. Subject to the terms and conditions of this License, Embarcadero grants to you, if you are an individual, or, if you are an entity, one (1) designated person in your organization ("Named User") a personal, nonexclusive, nontransferable and limited license to use the Product to create, compile (including byte code compile), test and deploy, in source or object code form, your own application programs and other works ("Works"). You may purchase from Embarcadero or an Embarcadero authorized distributor or reseller additional licenses to permit multiple Named Users to use the Product (each, a "Named User License"). The foregoing Named User Licenses shall be for access and use, only by the equivalent number of Named Users for whom you have paid the applicable license fees and obtained a License Certificate. The Product may be used exclusively by the specifically designated Named Users, subject to all the terms and conditions of this License. You agree that you will not designate more Named Users than the number of Named User Licenses that Embarcadero or an Embarcadero authorized distributor or reseller has expressly granted to you and you will not allow the Product to be used by any individuals other than the Named Users designated by you from time to time. You may install the Product on a reasonable number of machines provided that the Named User is the only individual permitted to use the Product. Subject to the other terms and conditions of this License, you may make a reasonable number of copies of the Product to backup devices such as hard disks, optical media, or tape and one (1) physical DVD media backup copy of the Product solely to replace the original copy provided to you if the original copy is damaged or destroyed. All rights not specifically granted to you herein are retained by Embarcadero.
2.4 Concurrent User License. The terms of this Section 2.4 are applicable to you only if you have purchased a Concurrent User License, the details of which are outlined below, for the Product directly from Embarcadero or an Embarcaderoauthorized distributor or reseller.
2.4.1 Concurrent User License Grant. Subject to the terms and conditions of this License, Embarcadero grants to you a nonexclusive, nontransferable and limited license to install the Product, in executable form only, on a reasonable number of computers or machines or on a server accessed and used by multiple users located in the Territory, as defined in 2.4.2 below, provided that the Product is used only by as many concurrent users at any given moment in time as you have concurrent licenses under your License Certificate and provided further that your use of the Product is only on computers or machines located in the Territory and accessed only by users physically located in the Territory. The foregoing license shall be for access and use, only by the equivalent number of concurrent users for whom you have paid the applicable license fees and obtained a License Certificate, solely to create, compile (including byte code compile), test and deploy, in source or object code form, your own application programs and other works ("Works"). As used in this Section, use or in use means that the Product is “in use” on a computer or machine when it is loaded into random access memory (RAM) of that computer, and "access" means the ability to use, copy or operate the Product. The Product may not be shared or used concurrently on computers or machines located outside of the Territory or in such a way to enable use or access by users located outside the Territory. You may also make a reasonable number of copies of the Product to backup devices such as hard disks, optical media, or tape and one (1) physical DVD media backup copy of the Product solely to replace the original copy provided to you if the original copy is damaged or destroyed. All rights not specifically granted to you herein are retained by Embarcadero. You agree to maintain accurate records of the use of the Product under each License Certificate you hold.
2.4.2 Concurrent Use Territory. ‘Territory’ means the geographical area in which the Product may be used. The Use in the Territory shall be subject to the export restrictions set forth below. Territory may be any one, and only one, of the following three geographic areas: Americas Territory, EMEA Territory or AsiaPac Territory each as defined below. Unless otherwise identified in your License Certificate, you may determine the relevant Territory at the time of installation of the Product onto a computer or machine by installing the Product in that one Territory. The geographic Territories are:
220.127.116.11 ‘Americas Territory’ including and limited to those geographical areas found within the boundaries of North and South America.
18.104.22.168 ‘Europe, Middle East and Africa Territory’ or ‘EMEA Territory’ including and limited to those geographical areas found within the boundaries of Europe, Middle East and Africa, including countries that fall into one or more of the following: member countries of the European Community; the countries of the former Yugoslavia; all the countries of the Arab Middle East; countries of the former Eastern Europe region (Bulgaria, Romania, Poland, Czech Republic, Slovakia, Hungary); the countries of the former Soviet Union; all the countries of Africa, Madagascar, and the Islands of the South Indian Ocean; and the countries or regions Albania, Andorra, Cyprus, Guernsey, Iceland, Iran, Isle of Man, Israel, Jersey, Liechtenstein, Malta, Monaco, Norway, San Marino, Switzerland and Turkey.
22.214.171.124 ‘Asia Pacific Territory’ or ‘AsiaPac Territory’ including and limited to those geographical areas found within the boundaries of Asia and Australia/Pacific including South Korea, Japan, China, Taiwan, Hong Kong, Macau, India, Maldives, Pakistan, Myanmar, Nepal, Bhutan, Bangladesh, Thailand, Laos, Cambodia, Vietnam, Singapore, Malaysia, Indonesia, East Timor, the Philippines, Brunei, Papua New Guinea, the Pacific Ocean Islands, Australia, and New Zealand.
2.5 Command Line Compiler. You may install the command line compiler on a separate computer from the Product itself, provided that the sole purpose of doing so is to allow that computer to perform unattended building of applications.
3. GENERAL TERMS THAT APPLY TO COMPILED PROGRAMS AND REDISTRIBUTABLES.
3.1 Redistributables. The Product may include certain files, libraries and/or source code specifically designated as "redistributables" by Embarcadero in the accompanying printed or on-line documentation and that are necessary to use Works created using the Product ("Redistributables"). From time to time, Embarcadero may designate other files as Redistributables. You should refer to the documentation, including any "readme" or "deploy" files provided with the Product, for additional information regarding Redistributables. Subject to the terms and conditions of this License, you may freely redistribute source code or compiled code that is entirely your own and does not contain any Redistributables.
3.2 Licensing of Redistributables. Subject to the terms and conditions of this License including the restrictions of Section 3.3, Embarcadero grants you the personal, nonexclusive, nontransferable, and limited license to: (a) make exact copies of the Redistributables and distribute those copies solely as components of your Works and solely as required for permitting end users of the Works ("End Users") to install and execute the Works; (b) install and execute Redistributables, without modification, on computers that you own or possess solely for your own internal use; and (c) sublicense to your End Users the personal, nonexclusive, nontransferable right to install and execute Redistributables, without modification, solely as components of Works and solely for such End Users' own internal use, subject to End Users' compliance with the restrictions in Section 5 as to Redistributables. The rights granted to you under this Section 3.2 may not be exercised by others, including co-developers, regardless of how you might compile, link, or package your Works. These rights apply only to Redistributables and to no other file, library, source code or other component or derivative work of the Product. They may be exercised only with respect to Works created by you using a duly licensed, properly registered copy of the Product.
3.3 Certain Restrictions. Regardless of any modifications that you make and regardless of how you might compile, link, or package your Works: (a) except as provided in Section 3.6, you may not permit your End Users to modify or further distribute Redistributables or use Redistributables in any program that they create; (b) you may not use Embarcadero's or any of its suppliers' names, logos, or trademarks to market your Works, except to state descriptively that your Work was written using the Product; (c) all copies of the Works you create must bear a valid copyright notice, either your own or the Embarcadero copyright notice that appears on the Product, and you may not remove or alter any Embarcadero copyright, trademark or other proprietary rights notice contained in any portion of the Redistributables; and (d) you may only distribute Redistributables with Works that add primary and substantial functionality to the Redistributables and are not merely a set or subset of any of the Redistributables, and that are created in accordance with the terms of this License.
3.4 Relationship with End Users. Except as set forth in Section 4, there are no third party beneficiaries to this License. Consequently, Embarcadero provides no warranty at all to any person, other than the limited warranty provided to you the original purchaser of the Product, as set forth herein, and you will be solely responsible to your End Users (or anyone else who uses or acquires Works) for support, service, upgrades, or technical or other assistance (including with respect to any Redistributables included therein), and such persons will have no right to contact Embarcadero for any services or assistance. You will indemnify, defend and hold Embarcadero, its licensors, its suppliers and each of their respective employees, officers, directors and affiliates, harmless from and against any claims or liabilities arising out of or related to the use, procurement, reproduction or distribution of your Works by third parties.
3.5 Third Party Software. The Product, including Redistributables, may include source code, redistributable files, and/or other files provided by a third party vendor ("Third Party Product"). Since use of Third Party Product might be subject to license restrictions imposed by the third party vendor, you should refer to the on-line documentation (if any) provided with Third Party Product for any license restrictions imposed by the third party vendor. In any event, any license restrictions imposed by a third party vendor are in addition to, not in lieu of, the terms and conditions of this License.
3.6 Provisions Applicable to Component Developers. For the purpose of this Section 3.6, the following terms have the following meanings:
"Component" means a program module or object, developed by you using the Product, that is designed to interoperate with other program modules/objects developed by others using a different development environment.
"Component Customer" means an individual or entity that procures Components from you for the purposes of: (i) integrating such Components with program modules/objects developed using a different development environment; and (ii) distributing such integrated products to their End Users.
"Component Developer" means an individual or entity that uses the Product to develop Components for distribution to Component Customers.
If you are a Component Developer, you may (i) distribute copies of the Redistributables to your Component Customers, and (ii) grant them the right to distribute copies of the Redistributables along with both your Components and their Works to their End Users only if you have first entered into an agreement with each such Component Customer that conforms to this Section 3.6 and contains the following provisions (enumerated as appropriate to the context):
3.6.1 Sublicensing of Redistributables. Subject to the terms and conditions of this section, including the restrictions of Section 3.6.2, [insert Component Developer name] grants you the personal, nonexclusive, nontransferable, and limited sublicense to: (a) make exact copies of the Redistributables and distribute those copies solely in conjunction with your works that embody components procured from [insert Component Developer name] ("Works"), solely as required for permitting end users of the Works ("End Users") to install and execute the Works; (b) install and execute Redistributables, without modification, on computers that you own or possess solely for your own internal development use; and (c) further sublicense to your End Users the personal, nonexclusive, nontransferable right to install and execute Redistributables, without modification, solely as components of your Works and solely for such End Users' own internal use, subject to End Users' compliance with the restrictions in Section 3.6.4 as to Redistributables.
3.6.2 Certain Restrictions. Regardless of any modifications that you make and regardless of how you might compile, link, or package your Works: (a) you may not permit your End Users to modify or further distribute Redistributables or use Redistributables in any program that they create; (b) you may not use Embarcadero's or any of its suppliers' names, logos, or trademarks to market your Works, except to state descriptively that your Work was written using the Product; (c) all copies of the Works you create must bear a valid copyright notice, either your own or the Embarcadero copyright notice that appears on the Product, and you may not remove or alter any Embarcadero copyright, trademark or other proprietary rights notice contained in any portion of the Redistributables; and (d) you may only distribute Redistributables with Works that add primary and substantial functionality to the Redistributables and are not merely a set or subset of any of the Redistributables.
3.6.3 No Warranties. Embarcadero provides no warranty at all to you or to any other person. You will be solely responsible to your End Users (or anyone else who uses or acquires Works) for support, service, upgrades, or technical or other assistance (including with respect to any Redistributables included therein), and such persons will have no right to contact Embarcadero for any services or assistance. You will indemnify, defend and hold Embarcadero, its licensors, its suppliers and each of their respective employees, officers, directors and affiliates, harmless from and against any claims or liabilities arising out of or related to the use, procurement, reproduction or distribution of your Works by third parties.
3.6.4 You may not: (a) modify, adapt, alter, translate, or create derivative works of the Redistributables; (b) lease, rent or loan the Redistributables to any third party; (c) sublicense, distribute or otherwise transfer the Redistributables or any component thereof to any third party except as expressly authorized in this section; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Redistributables; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Embarcadero or its suppliers on the Redistributables; (f) allow third parties to access or use the Redistributables such as in a time-sharing arrangement or use the Redistributables as part of a service bureau or otherwise for the use or benefit of third parties; or(g) reproduce or use the Redistributables except as expressly authorized under this section. Furthermore, you may not permit your End Users to conduct the restricted activities limited by items (a) through (e) and (g) above insofar as they apply to Redistributables, and such End User's sublicense rights to the Redistributables are conditioned upon compliance with such limitations. The limitations in this Section apply equally to your use of the Redistributables, in whole or in part, including any component or Redistributables.
3.7 Other Rights. Contact Embarcadero for the applicable royalties due and other licensing terms for all other uses or distribution of the Redistributables.
4. PROGRAM NOTES. The following terms and conditions ("Program Notes") are specific to certain editions, versions and components of the Product and are in addition to the provisions of Sections 2 and 3. If any provision of the Program Notes applicable to the Product conflicts with any other provision of this License, then the provision of the Program Notes will supersede and control.
4.1 PROGRAM NOTES THAT APPLY TO ARCHITECT, ARCHITECT ACADEMIC, ENTERPRISE, ENTERPRISE ACADEMIC, PROFESSIONAL, AND PROFESSIONAL ACADEMIC EDITIONS.
ADDITIONAL LICENSE TERMS FOR INTERBASE: The portion of the Product identified as InterBase is not a Redistributable and is licensed for development purposes only. This License does not permit you to use the InterBase portion of this Product for any commercial, business, governmental institutional or other purpose of any kind, other than development and testing of Works. You must obtain a separate InterBase deployment license from Embarcadero before deploying or distributing any Work that uses InterBase.
4.2 ADDITIONAL LICENSE TERMS APPLICABLE TO SOFTWARE LICENSED FOR EDUCATIONAL USE
Subject to the terms and conditions of this License, you may exercise your rights under this license to use the Product and to create Works solely for your own personal use in providing or receiving instruction within the limited scope of guided computer programming and/or software training courses in which you are a direct and personal participant, either as student or instructor ("Courses"). You may only reproduce, distribute and use Works, in source or object code form, to other participants of the Courses and then only for educational or training purposes. You may not use the Products or Works created with the products for any commercial, business, governmental or institutional purpose of any kind, except to the extent you are an instructor teaching a Course. All rights not specifically granted to you herein are retained by Embarcadero.
4.3 ADDITIONAL LICENSE TERMS APPLICABLE TO THIRD PARTY SOFTWARE
Certain components of the Product use or incorporate third-party software programs and/or libraries ("Third-Party Software") which are loaded (in both object and source code form) on the Product media. You agree that Embarcadero's third- party licensors and suppliers are intended third party beneficiaries of all terms and conditions of this License intended to protect intellectual property rights in the Product (including the Third-Party Software) and limit certain uses thereof.
4.4 ADDITIONAL LICENSE TERMS APPLICABLE TO PROFESSIONAL AND PROFESSIONAL ACADEMIC EDITIONS
Subject to the terms and conditions of this License, Embarcadero grants to you as the licensed user of the Product the limited right to use that portion of the Product identified as "dbExpress", in executable form only, to access a local database installed on the same machine as the Work. You may not use that portion of the Product identified as "dbExpress" in association with a database located on a different machine other than the machine on which the Works are installed.
4.5 ADDITIONAL LICENSE TERMS APPLICABLE TO BLACKFISH SQL
The following additional terms apply to the Blackfish SQL database product included with the Product.
4.5.1 Development Usage
The Named User licensed to use the Product may use Blackfish SQL for development purposes as described in Section 2 above.
4.5.2 Deployment Usage
You may deploy the Blackfish database as follows, solely as part of the Works that you create.
(i) BLACKFISH SQL RAD STUDIO PROFESSIONAL EDITION If you have purchased a license to Delphi 2009 Professional or C++Builder 2009 Professional; Embarcadero grants you a personal, nonexclusive, nontransferable and limited license to install and execute Blackfish SQL on an unlimited number of computers (each a "Local Server") for use by one (1) User at any given moment in time. A User may not access the Product sitting on a Local Server from a computer different from the Local Server. You may not exceed four local connections per User. A "local connection" is a communication session between the Product, as resident on the Local Server, and a copy of the Work that is also executing on the Local Server.
(ii) BLACKFISH SQL RAD STUDIO ENTERPRISE EDITION If you have purchased a license to Delphi 2009 Enterprise or Architect or C++Builder 2009 Enterprise or Architect; Embarcadero grants you a personal, nonexclusive, nontransferable and limited license to install and execute the Product on an unlimited number of computers (each a "Server") for use by up to 5 Users. You may not exceed four connections per User.
A "support connection" is a communication session between Blackfish SQL, as resident on the Server, and a copy of the licensed Work that is also executing on the same server or that is resident on another machine.
Separate Blackfish SQL licenses are available for purchase from Embarcadero for deployments that require support for more users or larger database file sizes.
4.5.3 Additional Restrictions
For purposes of section 3.2, 3.3 and 3.4, Blackfish SQL shall be considered a Redistributable. Therefore you may distribute Blackfish SQL with the Works you create and distribute to End Users, provided you comply with Section 3.2, 3.3 and 3.4 and provided each distribution complies with the licenses described above.
5. LIMITATIONS. You may not: (a) modify, adapt, alter, translate, or create derivative works of the Product or merge the Product with other software other than as described in the Product's accompanying documentation or as approved of in writing by Embarcadero; (b) lease, rent or loan the Product to any third party; (c) sublicense, distribute or otherwise transfer the Product or any component thereof to any third party except as expressly authorized in this License; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Product; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Embarcadero or its suppliers on the Product; (f) allow third parties to access or use the Product such as in a time-sharing arrangement or operate the Product as part of a service bureau or, except as expressly authorized under Sections 2, 3 or 4, otherwise for the use or benefit of third parties; or (g) reproduce or use the Product except as expressly authorized under Sections 2, 3 or 4. The rights granted under this License apply only to this Product. You must procure a separate license to use other Embarcadero software. Furthermore, you may not permit your End Users to conduct the restricted activities limited by items (a) through (e) and (g) above insofar as they apply to Redistributables, and such End User's sublicense rights to the Redistributables are conditioned upon compliance with such limitations. The limitations in this Section 5 apply equally to your use of the Product, in whole or in part, including any component or Redistributable.
6. LIMITED WARRANTY AND DISCLAIMER. Embarcadero warrants to you, the original purchaser, and to no other party, that any physical media included with the Product, as and when provided to you, will be free of physical defects in materials and workmanship for a period of ninety (90) days after the date that you initially acquire the Product. Your exclusive remedy and Embarcadero's sole liability for breach of this warranty is that Embarcadero will replace any defective media returned to Embarcadero within the ninety (90) day warranty period. This warranty does not apply to damages resulting from misuse, abuse or neglect. Any replacement media will be warranted as above for the remainder of the original warranty period or twenty (20) days from the date we ship it to you, whichever is longer. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, THE PRODUCT IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. EMBARCADERO HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE PRODUCT WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK FOR THE RESULTS OBTAINED USING THE PRODUCT. TO THE EXTENT THAT EMBARCADERO MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.
7. SERVICES; UPDATES; PRODUCT CHANGES. Embarcadero is not required under this License to provide any installation, training or other services to you. Such services, if available, must be purchased separately. If, pursuant to a separate support agreement or otherwise, Embarcadero provides you with a new release, error correction, update, upgrade or other modification to the Product, such modification will be deemed part of the Product, and subject to the terms of this License, unless the modification is expressly provided subject to a separate license agreement. Embarcadero reserves the right at any time not to release or to discontinue release of any Product and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Product.
8. REGISTRATION. You must register the Product with Embarcadero as a condition to your rights to use the Product. You will be prompted to register the Product at the time of your installation or first use of the Product, at which time you will be notified (or directed to online resources explaining) how registration information provided by you may be used and you will be afforded the opportunity to opt out of certain uses of such information.
9. CONFIDENTIALITY. You acknowledge that the Product in source code form remains a confidential trade secret of Embarcadero. You agree to hold this information in confidence, not disclose it to any person, and not use it for any purpose other than the use and operation of the Product as permitted under this License.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL EMBARCADERO BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR DATA, ARISING FROM OR RELATING TO THIS LICENSE OR THE PRODUCT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF EMBARCADERO KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMBARCADERO'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LICENSE OR THE PRODUCT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS LICENSE. THIS SECTION 10 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11. THIRD PARTY CLAIMS. Embarcadero will defend and settle any suit brought against you by a third party (not your affiliate) based on a claim that the Product infringes upon any U.S. copyright and Embarcadero will pay those costs and damages finally awarded against you in such suit that are specifically attributable to such claims or those amounts payable by you under a settlement of such suit. The foregoing obligations are conditioned on you: (a) notifying Embarcadero promptly in writing of such action; (b) giving Embarcadero sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Embarcadero's request and expense, assisting in such defense. If the Product becomes, or in Embarcadero's opinion is likely to become, the subject of an infringement claim that Embarcadero is required to defend, then Embarcadero may (at its option and expense) either: (a) procure for you the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing; or (c) terminate this License and your rights hereunder to use the Product and refund a pro rata portion of any license fee you paid under this License, based on a three (3) year product life. Notwithstanding the foregoing, Embarcadero will have no obligation under this Section 11 or otherwise with respect to any infringement claim based upon: (a) any use of the Product not in accordance with this License or the products accompanying documentation; (b) any use of the Product in combination with other products, equipment, software, or data not provided by Embarcadero; (c) any use of any version of the Product other than the most current version made available to you; or (d) any modification of the Product by any person other than Embarcadero or its authorized agents ("Excluded Claims"). You will indemnify Embarcadero against all liability, damages and costs (including reasonable attorneys' fees) resulting from or related to an Excluded Claim. This section 11 states Embarcadero's entire liability and your sole and exclusive remedy for third- party claims relating to the Product.
12. TERM AND TERMINATION.
12.1 Term. The term of this License will begin as of the date that you receive the Product and will remain in effect perpetually unless terminated under this Section 12.
12.2 Termination for Convenience. You may terminate this License for any reason, or for no reason, by giving Embarcadero five (5) days' written notice.
12.3 Termination for Cause. Embarcadero may terminate this License if you breach your obligations hereunder. Embarcadero will effect such termination by giving you notice of termination, specifying therein the alleged breach. If your breach is curable, you will have a grace period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is cured within the thirty (30) day grace period, then this License will remain in effect; otherwise, this License will automatically terminate upon the conclusion of the thirty (30) day grace period.
12.4 Effect of Termination. Upon the termination of this License for any reason the following terms shall apply: (a) all rights granted under this License will immediately terminate and you must stop all use of the Product and any Redistributables; (b) you must return to Embarcadero or destroy all copies of the Product provided to or made by you, and will, within ten (10) days after the effective date of termination, provide Embarcadero with written certification that all such copies have been returned or destroyed;; and (c) all provisions of this License with the exception of the licenses granted in Sections 2, 3 and 4, will survive termination of this License for any reason.
13. GENERAL PROVISIONS.
13.1 Audit. If you are entering into this license as an entity other than an individual (e.g., as a corporation, a partnership, or other organization), during the term of this License and for one (1) year thereafter, Embarcadero or its outside auditors will have the right to conduct an audit of your records and computer systems to verify that you have paid to Embarcadero the correct amounts owed under this License and determine whether the Products are being used in accordance with the terms of this License. Any audit will be conducted during regular business hours at your facilities, with reasonable notice. You agree to provide the audit team access to the relevant records and facilities and to provide reasonable assistance to Embarcadero in connection with this provision. You agree to pay the cost of the audit if any underpayments during the period covered by the audit amount to more than five percent (5%) of the fees actually owed or if the number of deployments of the Products is more than five percent (5%) in excess of that licensed.
13.2 Canadian Transactions. If you are subject to Canadian law, you agree to the following:
The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language. / Les parties aux présentes, ont expressément exigé que la présente Convention et ses Annexes soient rédigées en langue anglaise.
13.3 Hazardous Uses. The Product is not intended for use, and you may not use or allow others to use the Product, in connection with any application requiring fail-safe performance such as the operation of nuclear power facilities, air traffic control or navigation systems, weapons control systems, life support systems, or any other system whose failure could lead to injury, death, environmental damage or mass destruction. You agree that Embarcadero will have no liability of any nature, and you are solely responsible, for any expense, loss, injury or damage incurred as a result of such use of the Product.
13.4 Governing Law. This License will be governed by and construed in accordance with the laws of the United States and the State of California, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable).
13.5 Entire License; Severability. This License constitutes the entire, final and exclusive agreement between you and Embarcadero regarding the specific license transaction described herein. If any provision of this License is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this License will remain in full force and effect.
13.6 Assignment. You may not transfer the Software media, assign this License or assign any of your rights or delegate any of your obligations under this License, by operation of law or otherwise (including by merger, sale of assets or consolidation), without Embarcadero's prior written consent. Any attempted assignment in violation of this Section 13.5 will be void.
13.7 Export Control. You may not directly or indirectly transfer the Product, including its documentation, to any country if such transfer would be prohibited by applicable law, including the U.S. Export Administration Act and the regulations issued thereunder. You agree to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country. You will be solely responsible for identifying and complying with all laws of any jurisdiction outside of the United States regarding the import, export or use of Products and technical data supplied by Embarcadero. You will obtain at your own expense all licenses, permits or approvals required by any government to use the Product.
13.8 U.S. Government Rights. The Product is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product with only those rights set forth in this License.
13.9 Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this License on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. This License may only be amended by a written document signed by both parties.
If you would like to alter the type or usage parameters of any license you have acquired from Embarcadero, you must first contact Embarcadero to obtain written approval and pricing for any such modifications to your license.
If you have any questions about this License, please contact your Embarcadero authorized reseller or Embarcadero. IF YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE, please indicate your acceptance as indicated below. This will be the legal equivalent of your signature on a written contract, and equally binding. You must agree to these terms and conditions in order to download and/or install the Software. If you do not agree with these terms and conditions, you should indicate below that you do not accept, and exit this process, as Embarcadero is unwilling to license the Software to you in such case, and you may return the Product within ten (10) days after you first received it to Embarcadero or your Embarcadero authorized reseller, along with its original packaging and proof-of-purchase, for a full refund.
Embarcadero Technologies, Inc.
100 California Street, 12th Floor
San Francisco, CA 94111