Zed Builds And Bugs            

IMPORTANT: CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING (IF APPLICABLE), INSTALLING OR USING THE PRODUCT(S) AND DOCUMENTATION ACCOMPANYING THIS AGREEMENT. BY CLICKING ON THE "ACCEPT" OR "YES" BUTTON, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACKNOWLEDGING YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). HERICUS SOFTWARE, LLC. (HEREINAFTER "HERICUS") IS ONLY WILLING TO PROVIDE THE PRODUCT(S) AND DOCUMENTATION TO YOU UNDER THESE TERMS AND CONDITIONS. YOUR ACT OF CLICKING ON THE "ACCEPT" OR "YES" BUTTON AND/OR ANY USE BY YOU OF THE PRODUCT(S) AND/OR DOCUMENTATION WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT" OR "NO" BUTTON, DO NOT PROCEED WITH THE DOWNLOAD (IF APPLICABLE) OR INSTALLATION OF THE PRODUCT(S), AND, IF THE PRODUCT(S) AND DOCUMENTATION HAVE BEEN DELIVERED TO YOU, PROMPTLY RETURN THEM TO HERICUS OR THE DISTRIBUTOR OR SUPPLIER FROM WHICH IT WAS ACQUIRED (IF APPLICABLE) FOR A FULL REFUND. THE TERM "PROMPTLY" AS USED HEREIN SHALL MEAN NO LATER THAN SIXTY (60) DAYS FOLLOWING THE DELIVERY OF THE PRODUCT(S) AND DOCUMENTATION TO YOU.

1. Grant and Scope of License.

1.1 Subject to the terms and conditions contained herein, Hericus grants to you ("User") a non-exclusive, non-transferable, limited license to use the computer program(s) (individually referred to herein as "Product" or collectively as "Products") for which valid license keys have been issued by Hericus or its licensors or expressly identified in an order letter, license certificate or other document in written or electronic form provided by Hericus or its licensors (an "Order Letter") and related manuals in written or electronic form ("Documentation"). User's use of the Products shall be limited to internal use and all such use shall be in accordance with the provisions and limitations set forth in Exhibit A to this Agreement and the Order Letter. The Products may include code to verify that User has not exceeded the license keys issued by Hericus (the "Runtime License Checker") and in the event that the Runtime License Checker determines that User has exceeded its license the Products may cease to operate. Hericus reserves all rights not expressly granted to User in this Agreement.

1.2 User may not transfer, sell, assign or otherwise convey this Agreement or the Products, by operation of law or otherwise, to any other party. User may not sell, rent, license, or grant sublicenses, leases, or other rights in the Products to others or otherwise allow the Products to be accessed by another party. User shall have no right to use the Products to provide time sharing services or act as or operate a service bureau or provide subscription or hosting services for others, nor to use the Products in or with any software application that is made available on a time sharing, service bureau, subscription or hosting basis. User may not use the Products to develop, test, support or market products that are competitive with and/or provide similar functionality to the Products. This Agreement automatically terminates if User novates, assigns, sells, rents, licenses, grants, sublicenses, leases or otherwise transfers possession of any copy of the Products or Product Updates to another party or purports to do the same.

1.3 For purposes of this Agreement a "Product Update" shall mean any update, patch, version and/or new release of or to the Product that Hericus furnishes generally to its customers who are on support in accordance with Hericus's then current support policies and fee requirements. A Product Update replaces part or all of a Product or Product Update previously licensed to User and shall terminate such previously licensed Product or Product Update to the extent replaced by the Product Update. Product Updates shall be subject to the terms and conditions of the license agreement accompanying the Product Update.

1.4 User agrees to pay the applicable end user license fees, as well as any applicable transportation charges and any value-added taxes or other applicable taxes, tariffs or withholding taxes which the relevant authorities require to pay, within thirty (30) days of date of invoice.

1.5 The term of this Agreement shall be perpetual (unless otherwise specified), subject to termination in accordance with the provisions of Section 2.2 below. The License Model (as defined in Exhibit A) shall be in accordance with the terms of the Order Letter or the license key issued for the product.

2. Hericus's Rights.

2.1 The Products are proprietary products of Hericus or its licensors (if any), and are protected by intellectual property law. By virtue of this Agreement, User acquires only the non-exclusive right to use the Products and does not acquire any rights of ownership or other right in the Products, Documentation or the media upon which they are embodied. Hericus or its licensors (if any) shall at all times retain all right, title, and interest in the Products, Documentation and media. Except as otherwise expressly provided for in this Agreement, User acquires no rights of any kind in or to any trade name, logo, or trademark of Hericus or Hericus's affiliated companies or licensors, or any product designation under which the Products were or are marketed and shall not make use of the same for any reason except as expressly authorized by this Agreement or otherwise authorized in writing by Hericus.

2.2 Hericus may terminate this Agreement by written notice if User materially defaults in the performance of any provision of this Agreement and fails to cure such default to the satisfaction of Hericus within thirty (30) calendar days after receipt of notice of the default from Hericus. This remedy shall not be exclusive and shall be in addition to any other remedies which Hericus may have under this Agreement or otherwise. Within five (5) days after termination of this Agreement for any reason or expiration of the term of this Agreement (if applicable), User will return to Hericus or destroy all copies of the Products and certify in writing to such return or destruction of all copies of the Products.

3. Non-Disclosure; Copies; Alterations. User acknowledges that the Products are the valuable proprietary and trade secret information of Hericus or its licensors (if any). User shall (i) limit use and disclosure of the Products to its employees and to its consultants who agree to be bound by the terms of this Agreement; (ii) not provide or disclose any of the Products to any other party without the prior written consent of Hericus; and (iii) take all reasonable precautions to maintain the confidentiality of the Products. User agrees, under penalty of license termination but not exclusive of any other remedies, not to cause or permit the reverse engineering, modification, decryption, extraction, disassembly, copying, or decompilation of the Product(s) (except as permitted by applicable law). User may copy the Product(s) only for archival purposes. User may copy the Documentation (in electronic format) solely for the purpose of facilitating User's use of the Product(s) in accordance with, and subject to, the terms and conditions of this Agreement. User may not copy nor allow others to copy the Products or any Product Update, or any portion thereof, for any purpose other than expressly set forth herein. User agrees not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Products and may not disclose any information regarding any benchmark or similar tests of the Product to any third party.

4. Limited Warranty and Disclaimers. Hericus warrants that for a period of thirty (30) days from User's purchase of the license to use the Products ("Warranty Period"), that the Product media will not be defective and that the copy of the Product delivered to you conforms in all material respects to the Documentation. As the sole and exclusive remedy for defective media, Hericus will repair or replace free of charge such defective media during the Warranty Period provided such defective media is returned to Hericus or its supplier within the Warranty Period. As the sole and exclusive remedy for any failure of the Product to materially conform to the Documentation, Hericus shall repair, replace, or correct the Product if such failure is reported during the Warranty Period or, if Hericus, at its discretion, reasonably determines that such remedy is not economically or technically feasible, this Agreement, and User's license hereunder, will terminate and Hericus or its supplier (as applicable) shall provide a full refund of the license fee paid with respect to the particular Product. This warranty does not cover defects due to accident, abuse, service or modification by User or any third party, or any other cause occurring after initial delivery of the Product to User. This warranty is made solely by Hericus and not its third-party suppliers, as applicable. Hericus warrants that it has the right to license the Products. Hericus will defend User against any claim based on an allegation that a Product infringes a U.S. patent or copyright, but only if Hericus is notified promptly in writing of such claim and is given sole control of the defense thereof and all settlement negotiations relating thereto. Notwithstanding the foregoing, Hericus shall not be liable to User for any claim arising from or based upon the alteration or modification of any of the Products. THE LIMITED WARRANTY SPECIFIED IN THIS SECTION 4 SETS FORTH THE ENTIRE WARRANTIES AND REPRESENTATIONS PROVIDED BY HERICUS TO USER WITH RESPECT TO THE PRODUCTS. SUCH LIMITED WARRANTY IS PROVIDED SOLELY BY HERICUS AND NOT HERICUS'S LICENSORS. EXCEPT FOR THE LIMITED WARRANTY PROVIDED SOLELY BY HERICUS TO USER PURSUANT TO THIS SECTION 4, NEITHER HERICUS NOR ITS LICENSORS, NOR ANY OF THEIR RESPECTIVE SUPPLIERS, MAKE ANY EXPRESS WARRANTIES OR REPRESENTATIONS RELATING TO THE PRODUCTS OR ANY SERVICES RELATED THERETO, AND FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE PRODUCTS AND ANY SERVICES RELATED THERETO. Without limiting the scope of the disclaimers set forth herein, Hericus, for example, does not warrant that errors cannot arise during the use of the Product(s). Further, the Product(s) are not fault tolerant and are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance (including, without limitation, the design, construction, operation or maintenance of any nuclear facility; direct life support machines; weapon systems; or control of aircraft, air traffic, aircraft navigation or aircraft communications), in which the failure of the Product(s) could lead directly or indirectly to death, personal injury or severe physical or environmental damage. Without limiting the scope of the disclaimers set forth herein, Hericus for itself and on behalf of its licensors and their respective suppliers, disclaims any express or implied warranty of fitness for any such high risk uses. THE LIMITED WARRANTY SPECIFIED IN THIS SECTION 4 GIVES THE USER SPECIFIC LEGAL RIGHTS, AND MAY ALSO IMPLY OTHER RIGHTS WHICH VARY FROM STATE TO STATE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION ON HOW LONG ANY IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY.

5. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF HERICUS, IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS AND/OR SERVICES SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY USER FOR SUCH PRODUCTS AND/OR SERVICES. HERICUS'S LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO USER FOR ANY DAMAGES SUFFERED BY USER OR ANY THIRD PARTY AS A RESULT OF USING THE PRODUCTS, OR ANY PORTION THEREOF, OR AS A RESULT OF ANY SERVICES RELATING THERETO. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL HERICUS, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, OR ANY PORTION THEREOF, OR ANY SERVICES, EVEN IF HERICUS, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY. EACH EXCLUSION OF LIMITATION IS INTENDED TO BE SEPARATE AND THEREFORE SEVERABLE EXCLUSION.

6. Export Regulations. The Products, including technical data, are subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. User shall not directly or indirectly export or re-export the Products, or the direct product thereof, without first obtaining Hericus's written approval. User agrees to comply strictly with all regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import the Products. The Products may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria, Taliban and areas of Afghanistan controlled by the Taliban, or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders as amended from time to time.

7. U.S. Government Restricted Rights. If the Products are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government's rights in the Products will be only as set forth herein. Each such Product is a "commercial component," as this term is defined in 48 C.F.R. "2.101, consisting of "commercial computer software" and "computer software documentation," as such terms are defined in 48 C.F.R. "252.227-7014(a)(1) and 48 C.F.R. "252.227-7014(a)(5), respectively, and used in 48 C.F.R. "12.212 and 48 C.F.R. "227.7202, as applicable, and all as amended from time to time. Consistent with 48 C.F.R. "12.212 and 48 C.F.R. "227.7202, and other relevant sections of the Code of Federal Regulations, as applicable, and all as amended from time to time, all U.S. Government entities acquire this Product only with those rights set forth in the license agreement accompanying the Product. Contractor/manufacturer is Hericus Software, LLC., 14019 Southwest Freeway Suite #301-426, Sugar Land, TX 77478. Unpublished "all rights reserved under the copyright laws of the United States".

8. Records Inspection and Auditing of Usage. User shall maintain books and records in connection with User's actions under this Agreement. Such records shall include at a minimum the number of licenses purchased and being used by User. Upon the request of Hericus, User agrees to provide a declaration signed by an authorized representative certifying as to the actual number of units (for example users, servers, CPUs per server, connections, or operating systems, as applicable and as defined in Exhibit A) of the Product(s) currently in use by User. Hericus may, at its expense: (a) have Hericus or a third party audit the records of User to ensure compliance with the terms of this Agreement, (b) bundle, install, enable and utilize automated license tracking, management, and/or enforcement solutions with the Products, which User may not disrupt nor alter, (c) require User to demonstrate the accuracy of the records referenced herein, (d) visit the premises of User and inspect User's use of the Product(s) and (e) evaluate User's network monitoring software or monitoring capabilities to confirm that it adequately protects against User's breach of the provisions of this Agreement and the license granted hereunder. All audits shall be conducted during regular business hours at User's offices and shall not interfere unreasonably with User's activities. If any audit reveals that User has underpaid license and/or support fees to Hericus, User shall be invoiced for such underpaid license and/or support fees based on Hericus's list price in effect at the time the audit is conducted. If the underpaid license and/or support fees are in excess of five percent (5%) of the license fees previously paid by User, then User shall pay Hericus's reasonable costs of conducting the audit and enforcement of this Agreement.

9. Support. If Hericus offers support and User orders and pays for such support, it shall be provided in accordance with Hericus's then current technical support policies.

10. Miscellaneous. THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND/OR ORDER LETTERS EXPRESSLY REFERENCED HEREIN, CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCTS AND, EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION 10, SUPERCEDES ANY OTHER AGREEMENT, COMMUNICATION OR ADVERTISING, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS. To the extent there are any terms and conditions contained in User's purchase order or other documentation supplied by User ("User Documents"), the terms and conditions contained in the User Documents shall be deemed to be stricken and the terms and conditions of this Agreement shall govern. In the event of a conflict between the provisions of this Agreement and the specific provisions set forth in an Order Letter, the provisions of the Order Letter shall control. This Agreement has been drawn up in English at the express wish of the parties. Except as otherwise expressly set forth herein, this Agreement is governed by the laws of the Commonwealth of Texas, without regard to its choice of law principles, and without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal, national or state laws or regulations. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. If the Products are acquired outside the United States and local law is required, such local law shall apply. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. Hericus's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision.

EXHIBIT A

License Model Depending on the Products licensed in the Order Letter, the license grant listed in Section 1 is subject to the following descriptions and use restrictions:

(a) Authorized User Basis. If the Product is licensed on an Authorized User basis, the Product may be used on a single computing machine which may be accessed by the number of Authorized Users specified in the Order Letter. An Authorized User is a single individual who has been designated to use the Product. In no event shall the number of persons authorized to have access to the Product exceed the number of Authorized Users identified in the Order Letter. The right to use the Product is not based on concurrent users, but instead on an actual "Authorized User" basis. User must, upon request by Hericus, identify each Authorized User who will have access to the Product and provide that information to Hericus.

(b) Workstation Basis. If the Product is licensed on a Workstation basis, each Workstation using or accessing the Product must be licensed. A license must be purchased for each Workstation using or accessing the Product. A "Workstation" shall be defined as a computer that is operated, either attended or via remote access, by one person at a time, and cannot be used by more than one person, directly or indirectly, simultaneously. In no event shall the number of workstations utilizing or accessing the Product exceed the number of Workstations identified in the Order Letter.

(c) Server Basis. If the Product is licensed on a Server basis, then a license fee must be paid for the maximum number of processors ("CPUs") utilized by the Server whether or not such access is simultaneous or consecutive. Servers utilizing dual core processing (or multiple core processing) or other multi-processor technology shall have each core processor count as one (1) CPU. The Product may only be used by server-based applications running on that server accessed by other computers and may not be installed via file sharing on a local area network file system. A "Server" shall be defined as a logical computer with one or more CPUs on which the Product resides, along with the applications utilizing the Product, and which can be accessed by other computers. The term "Server" includes, but is not limited to, web servers, batch servers and application servers.

(d) Evaluation Basis. If the Product is licensed on an Evaluation basis, then it is licensed on a Workstation basis or a Server basis for fifteen (15) days from download or receipt (as the case may be) unless a different term is listed in an Order Letter, subject to the additional restriction that it be used solely for evaluation of software applications and not in conjunction with the development or deployment of such software applications in production. NOTWITHSTANDING THE PROVISIONS OF SECTION 4 OF THE AGREEMENT, USER UNDERSTANDS AND ACKNOWLEDGES THAT (i) PRODUCT LICENSED ON AN EVALUATION BASIS IS PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT AND (ii) THE EVALUATION VERSION OF THE PRODUCT CONTAINS A DISABLING DEVICE THAT WILL AUTOMATICALLY DISABLE THE EVALUATION VERSION AT THE END OF THE EVALUATION PERIOD. Pursuant to Section 2.2 of the Agreement, User acknowledges and agrees that within five (5) days after expiration of the term of the evaluation period or earlier termination, as the case may be, User will return to Hericus or destroy all copies of the Products and certify in writing to such return or destruction of all copies of the Products. User further acknowledges and agrees that the evaluation period may not be extended by uninstalling and re-installing the Product or by any other means other than Hericus's written consent.

(e) Additional Use Parameters.

(1) Application Specific. If the Order Letter lists a specific application authorized for use with the Product, or if User obtained a Product in conjunction with a software application provided by a third party, the Product is licensed for use only with such application. Use with any other application/product is strictly prohibited.

(2) Term. If the Order Letter specifies that User's license to the Products is for a term ("Term"), then the term of this Agreement and User's license to the Products hereunder shall expire on the expiration date stated in the Order Letter, unless sooner terminated in accordance with Section 1.6 of the Agreement. Upon completion of the Term, User shall return all Products licensed under the Order Letter and associated documentation and related information (including all copies) to Hericus, or certify its destruction in a writing delivered to Hericus. All license rights in and to the Products under the terms of the Agreement shall terminate at the end of the Term.

(3) the Product may contain programs that perform automated collection of system data and transmit said data to equipment owned or under the control of Hericus in order to verify that (i) User is entitled to use Product, and/or (ii) User has not exceeded the license keys issued by Hericus (the "Runtime License Checker") and in the event that the Runtime License Checker determines that User has exceeded its license or is not entitled to use the Product, the Products may cease to operate.

(4) Zed Builds And Bugs utilizes a Java Virtual Machine and is subject to additional terms and conditions. User may not may not create, modify, or change the behavior of, or authorize User's licensees to create, modify, or change the behavior of, classes, interfaces, or subpackages that are in any way identified as "java", "javax", "sun" or similar convention as specified by Sun in any naming convention designation.

(5) Zed Builds And Bugs may contain Qooxdoo, JSP Wiki, Jetty, HSQLDB, Nuvola Icon Library, Bouncy Castle. Each of these third party technologies is licensed to Hericus and User is subject to the terms of a third party license, a copy of which is included with the Software in the About Documentation file. Hericus will, at User's request, provide a copy of the source code for these third party technologies, including modifications, if any, made by Hericus. Hericus may charge reasonable shipping and handling charges for such distribution. Notwithstanding anything to the contrary, to the extent that any of the terms and conditions of this Agreement conflict, vary or are in addition to the terms and conditions of the aforementioned third party licenses for these technologies, such terms and conditions are offered by Hericus alone and not by any other party.