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THE LICENCE AGREEMENT - 'COBOL
Translation and Documentation Toolkit' Full version
Software Mining Ltd of UK (the "Licensor" which expression
shall include its subsidiaries, agents, successors and assigns) is authorized
to license the software (the "Software") contained in the download
program and, upon clicking the download button, the Licensee accepts a
non-exclusive, non-transferable Licence to "Use" (as hereinafter
defined) one copy of the Software on a single computer (the "System")
for single use upon the terms and subject to the conditions contained herein.
Where the software is issued in multi-media, multi-disk format (being either
different disk size or different system compatibility) only that format which
is compatible with the system may be used. The other format may not be used and
should be destroyed.
This Licence entitles the Licensee to:
(a) load, install and Use the Software contained in the disk package on one
computer (a separate licence fee being required for each computer upon which
the Licensee wishes to use the Software);
(b) Use the Software in accordance with the provisions of Clause 2 of this
Licence;
and, where the Licensee signs and returns the warranty card enclosed with the
Software, to:
(a) Support is provided via e-mail to support@softwaremining.com for a period of 30 days
from date of purchase.
(b) receive the Licensor's bulletin reports of errors and "patches"
and receive such new updates of the Software incorporating the same;
(c) receive information on upgraded versions of the Software at such cost (if
any) as may be notified to the Licensee.
The terms and
conditions of this Licence are deemed to be accepted by the parties as follows:
by the Licensor upon dispatch/delivery by the Licensor of the disk package to
the Licensee direct or to the Licensor's agent as the case may be; and
by the Licensee by breaking the seal of this sealed package containing the
Software.
For the purposes of this Licence
"Use" shall mean and include: i)
utilization of the Software by copying, transmitting or loading the same into
the temporary memory (RAM) or installing into the permanent memory (e.g. hard
disk, CD ROM or other storage device) of the System for the processing of the
System instructions or statements contained in such Software; ii) copying the
Software which is in machine-readable form for Use by the Licensee on the
System for the purposes only of understanding the contents of such
machine-readable material and for back-up provided that no more than two (2)
copies will be in existence under any Licence at any
one time without prior written consent from the Licensor or as otherwise
permitted by the applicable law; iii)merging the whole or any part of the
Software in machine-readable form into another software program; iv)storing the
whole or any part of the Software on the System or other storage unit or disk;
v)utilizing (but not copying) the instruction and/or operational manuals
relating to the Software.
Where the
Licence Fee is not paid by the Licensee at the time the Software is obtained
from the Licensor or its agent the licence fee will be payable within the
number of days specified in the Licensor's invoice unless otherwise agreed in
writing by the Licensor.
An additional Licence Fee is payable for each computer upon which the Licensee
wishes to Use the Software. In the event that the Licensee's System is
inoperable or requires or is under repair, the Licensee may Use the Software on
a back-up system at no extra charge, until the System is operational.
The Licensee undertakes not to perform any of the acts referred to in
this sub-clause except to the extent and only to the extent permitted by the
applicable law to the Licensee as a lawful user of the Software and only then
for the specific limited purpose stated in such applicable law or hereunder.
2.1 The
Licensee undertakes: i)not to copy the Software (other than for normal System
operation and as specified in Clause 2 above) nor otherwise reproduce the same;
ii)not to translate, adapt, vary, modify the Software; iii)not to disassemble,
decompile or reverse engineer the Software Provided however that in the case of
decompilation, the Licensee may incidentally decompile the Software only if it
is essential so to do in order to achieve interoperability of the Software with
another software program ("Permitted Purpose") and provided the
information obtained by the Licensee during such decompilation is only used for
the Permitted Purpose and is not disclosed or communicated to any third party
whom it is not necessary to disclose or communicate such information without
the Licensor's prior written consent and is not used to create any software
which is substantially similar to the expression of the Software nor used in
any manner which would be restricted by copyright.
2.2 The Licensee undertakes: i) to maintain accurate and up-to-date records of
the number and location of all copies of the Software. ii) to supervise and
control Use of the Software in accordance with the terms of this Licence. iii)
to ensure that its employees, agents and other parties who will use the
Software are notified of this Licence and the terms hereof prior to such
employee, agent or party using the same. iv) to reproduce and include the
copyright notice of the Licensor or such other party as may be specified in or
on the Software (the "Owner") on all and any copies, whether in whole
or in part, in any form, including partial copies or modifications of the
Software made herein. v) not to provide or otherwise make available the
Software in whole or in part, in any form to any person other than the
Licensee's employees or as specified above without prior written consent from
the Licensor. vi) within 14 days after the date of termination or
discontinuance of this Licence for whatever reason, to destroy the Software and
all updates, upgrades or copies, in whole and in part, in any form including
partial copies or modifications of the Software received from the Licensor or
made in connection with this Licence, and all documentation relating thereto.
3.1 The Software is a
development tool, intended to assist the competent developer in the conversion
of COBOL code to source code in the Delphi and Java languages, and to
regenerate index/relative file structures in SQL Data Definition Language. The
regenerated source code will require testing, further development, and
modification by the Licensee before actual use. THE LICENSEE IS SOLELY
RESPONSIBLE FOR SUCH TESTING, FURTHER DEVELOPMENT, AND MODIFICATION, AND
GENERALLY FOR ENSURING THAT THE FINAL VERSION OF THE CONVERTED CODE IS
ERROR-FREE AND SUITABLE IN ALL RESPECTS FOR THE LICENSEE"S PURPOSES.
3.2 The Licensee acknowledges that software in general is not error-free, and
agrees that the existence of such errors shall not constitute a breach of the
terms of this licence.
3.3 In the event that the Licensee discovers a material error (other than one
disclosed on any "known bug list" prior to purchase) which substantially
affects the Licensee's use of the same and notifies the Licensor of the error within
90 days from the date of payment of the licence fee (the "Warranty
Period") the Licensor shall at its sole option either refund the licence
fee or use all reasonable endeavours to correct by patch or new release (at its
option) that part of the Software which does not so comply provided that such
non-compliance has not been caused by any modification, variation or addition
to the Software not performed by the Licensor or caused by its incorrect use,
abuse or corruption of the Software or by use of the Software with other
software or on equipment with which it is incompatible.
3.4 TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, THE LICENSOR DISCLAIMS ALL
OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
3.5 Although the Licensor does not warrant that the Software supplied hereunder
shall be free from all known viruses, it has used commercially reasonable
efforts to check for the most commonly known viruses prior to packaging but the
Licensee is solely responsible for virus scanning the Software.
3.6 The Licensor warrants that there are no disabling programs or devices in
the Software.
4.1 The
Licensor shall not be liable to the Licensee for any loss or damage whatsoever
or howsoever caused arising directly or indirectly in connection with this
Licence, the Software, its use or otherwise, except to the extent that such
liability may not be lawfully excluded under the applicable law.
4.2 Notwithstanding the generality of the above, the Licensor expressly
excludes liability for indirect, special, incidental or consequential loss or
damage which may arise in respect of the Software, its use, the System or in
respect of other equipment or property, or for loss of profit, business,
revenue, goodwill or anticipated savings.
4.3 In the event that any exclusion contained in this Licence shall be held to
be invalid for any reason and the Licensor becomes liable for loss or damage
that may lawfully be limited, such liability shall be limited to the licence
fee paid by the Licensee for the Software.
4.4 The Licensor does not exclude liability for death or personal injury to the
extent only that the same arises as a result of the negligence of the Licensor,
its employees, agents or authorized representatives.
The Licensee
acknowledges that any and all of the copyright, trade marks, trade names,
patents and other intellectual property rights subsisting in or used or in
connection with the Software including all documentation and manuals relating
thereto are and remain the sole property of the Licensor and/or the Owner. The
Licensee shall not during or at any time after the expiry or termination of
this Licence in any way question or dispute the ownership by the Licensor
and/or the Owner thereof.
6.1 The Licensor
agrees to indemnify and save harmless and defend at its own expense the
Licensee from and against any and all claims of infringement of any patent,
trade mark, industrial design, copyright or other proprietary right affecting
the Software PROVIDED THAT (i) the Licensee shall not have done, permitted or
suffered to be done anything which may have been or become an infringement of
any such rights (including but not limited to using the Software to perform the
Licensee's or other party's applications or using the Software in combination
or merged with other software programs or devices) and (ii) the Licensee shall
have exercised a reasonable standard of care in protecting the same; failing
which, the Licensee shall indemnify the Licensor against all actions,
proceedings, costs, claims and expenses incurred in respect thereof.
6.2 The Licensee undertakes that the Licensor shall be given prompt notice of
any claim that is made against the Licensee and the Licensor shall have the
right to defend any such claims and make settlements thereof at its own
discretion and the Licensee shall give such assistance as the Licensor may
reasonably require to settle or oppose any such claims.
6.3 In the event that any such infringement occurs or may occur, the Licensor
may at its sole option and expense:
i) procure for the Licensee the right to continue using the Software or
infringing part thereof; or
ii) modify or amend the Software or infringing part thereof so that the same
becomes non-infringing; or
iii) replace the Software or infringing part thereof by other software of
similar capability; or
iv) repay to the Licensee the Licence Fee or balance thereof relating to the
whole or the infringing part of the Software.
6.4 The Licensor's liability under this clause shall, at the Licensor's option,
be limited to the Licence Fee less an equitable proportion thereof as relates
to the period prior to cessation owing to infringement.
7.1 All information,
data, drawings, specifications, documentation, software listings, source or
object code which the Licensor may have imparted and may from time to time
impart to the Licensee relating to the Software (other than the ideas and
principles which underlie the Software) is proprietary and confidential. The
Licensee hereby agrees that it shall use the same solely in accordance with the
provisions of this Licence and that it shall not at any time during or after
expiry or termination of this Licence, disclose the same, whether directly or
indirectly, to any third party without the Licensor's prior written consent.
7.2 Subject only to the specific, limited provisions of Clause 4.1 above, the
Licensee further agrees that it shall not itself or through any subsidiary,
agent or third party use such confidential information to copy, reproduce,
translate, adapt, vary, modify, decompile, disassemble or reverse engineer the
Software nor shall the Licensee sell, lease, license, sub-license or otherwise
deal with the Software or any part or parts or variations, modifications,
copies, releases, versions or enhancements thereof or have any software or
other program written or developed for itself based on any confidential
information supplied to it by the Licensor.
7.3 The foregoing provisions shall not prevent the disclosure or use by the
Licensee of any information, which is or hereafter, through no fault of the
Licensee, becomes public knowledge or to the extent permitted by law. <
The Licensor shall be
under no liability to the Licensee in respect of anything, which, apart from
this provision, may constitute breach of this Licence arising by reason of
force majeure.
8.1 In addition to
provisions for termination as herein provided, the Licensor may by notice in
writing to the Licensee terminate this Licence if the Licensee is in breach of
any term, condition or provision of this Licence or required by the applicable
law and fails to remedy such breach (if capable of remedy) within 30 days of
having received written notice from the Licensor specifying such breach.
8.2 Upon termination, the Licensee shall pay to the Licensor all costs and
expenses, including legal and other fees incurred and all arrears of fees,
charges or other payments arising in respect of the Software, this Licence or
otherwise and shall comply with its undertaking specified in Clause 4 above.
8.3 Termination, howsoever or whenever occasioned shall be subject to any
rights and remedies the Licensor may have under this Licence or under the
applicable law.
9.1 Assignment
The Licensee shall not assign or otherwise transfer all or any part of the
Software or this Licence without the prior written consent of the Licensor.
9.2 Waiver
Failure or neglect by either party to enforce at any time any of the provisions
hereof shall not be construed nor shall be deemed to be a waiver of that
party's rights hereunder nor in any way affect the validity of the whole or any
part of this Licence nor prejudice that party's rights to take subsequent
action.
9.3 Headings
The headings of the terms and conditions herein contained are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of any of the terms and conditions of this
Licence.
9.4 Severability
In the event that any of these terms and conditions or provisions shall be
determined by any competent authority to be invalid, unlawful or unenforceable
to any extent, such term, condition or provision shall to that extent be
severed from the remaining terms, conditions and provisions which shall
continue to be valid to the fullest extent permitted by law.
9.5 Law
The parties hereby agree that the Licence concluded between them and
constituted on these terms and conditions shall be construed in accordance with
English Law.
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