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WebORB Standard License Agreement
THIS SOFTWARE LICENSE AGREEMENT (THE AGREEMENT) IS A LEGAL AGREEMENT BETWEEN MIDNIGHT CODERS, LLC (THE LICENSOR) AND THE CUSTOMER OF THE SOFTWARE. BY CLICKING THE ACCEPT BOX OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT (I) THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE CUSTOMER (THE ENTITY ON WHOSE BEHALF YOU REPRESENT YOU ARE AUTHORIZED TO ACT, IN WHICH EVENT YOU AND YOUR SHALL REFER TO YOU AND SUCH ENTITY, AS THE CASE MAY BE), OR (II) THAT YOU INTEND TO BE PERSONALLY BOUND TO THE TERMS OF THIS AGREEMENT AS THE CUSTOMER. IF YOU ARE NOT SO AUTHORIZED OR DO NOT INTEND TO BE PERSONALLY BOUND, THEN LICENSOR IS UNWILLING TO LICENSE THE SOFTWARE AND THE DOWNLOADING, INSTALLATION OR USE OF THE SOFTWARE IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND CONVENTIONS. IF YOU ACCEPT THESE TERMS FOR AN ENTITY ON WHOSE BEHALF YOU ARE AUTHORIZED TO ACT, YOU MAY USE THE SOFTWARE ONLY ON BEHALF OF SUCH ENTITY. IF YOU INTEND TO BE PERSONALLY BOUND, USE OF THE SOFTWARE IS LIMITED TO YOUR PERSONAL USE.
   
Definitions:
 
  1. "Development Use" means use of the Software by you to design, develop and/or test new applications for Production Use.
  2. "Documentation" means LICENSOR's user manuals, operating instructions and installation guides generally provided with the Software to its end-user licensees.
  3. "Evaluation Use" means use of the Software solely for internal evaluation and trial for new applications intended for possible Production Use or Third Party Use by you.
  4. "Production Use" means using the Software in your application for internal business purposes only which may include third party customers' access to or use of such applications. Production Use does not include the right to reproduce the Software for sublicensing, resale, or distribution, including without limitation, operation on a time sharing or service bureau basis or distributing the Software as part of any ASP, VAR, OEM, distributor or reseller arrangement.
  5. "Software" means the object code versions, extracts and/or derivative works of the software electronically downloaded from LICENSOR's website upon acceptance of this License, and the related Documentation.
   
LICENSOR hereby agrees to grant and CUSTOMER agrees to accept a non-exclusive license to use the Software subject to the following terms and conditions:
   
  1. Right to Use: The Software is provided in and is licensed for use in object code form only. CUSTOMER may make copies of the Software for archival or backup purposes, but any and all copies must include LICENSOR's copyright notice, and are fully subject to the terms of this Agreement. CUSTOMER may not reverse engineer, disassemble, decompile, translate or otherwise attempt to create the source code from the Software or create derivative works of the Software or any portion thereof, including for reasons of error correction or interoperability. At CUSTOMERs request and at LICENSORs election or as may be required by applicable law, LICENSOR will make commercially reasonable efforts to make available to CUSTOMER certain interface specifications so that CUSTOMER may develop software interfaces to provide interoperability with the Software. CUSTOMER is forbidden (i) from using Evaluation Software for Development or Production Use, CUSTOMER may not (ii) publish or provide any results of benchmark tests run on the Software to a third party without Licensees prior written consent, (iii) disclose, distribute or otherwise make available the Software to any other party or permit others to use it, except employees and agents of CUSTOMER who use it on CUSTOMERs behalf, if CUSTOMER is an entity, or (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. CUSTOMER may not rent, lease, sublicense, grant a security interest in, or otherwise transfer rights to the Software, but CUSTOMER may transfer the Software to a third party on a permanent basis in connection with the sale of substantially all of the assets of CUSTOMER provided CUSTOMER retains no copies and the recipient agrees to accept all of the terms and conditions of this Agreement. Upon such permitted transfer, CUSTOMER must either transfer all copies of the Software and all materials provided for or with it to the recipient or destroy any copies not so transferred. CUSTOMER may not bundle Software or a derivative of it as part of a software development environment such as JBuilder, WebGain, IDEA or VisualAge. Note that this restriction is targeted at IDE vendors, and does not prevent developers from loading Software into an IDE and using it for the evaluation purposes. CUSTOMER may not integrate Software or a derivative of it into a software infrastructure platform or products such as but not limited to: EJB Application Servers, Enterprise Application Integration products, Business to Business Integration products, Web Services Platforms, Web Services Management products, Process Control products, Business Process Automation products, Process Orchestration products, Distributed Computing Infrastructure products or platforms, Messaging Middleware products or Web Server products. Note that this restriction is targeted at software infrastructure vendors, and does not prevent developers from using and bundling Software with higher level applications that run on these platforms. CUSTOMER may not use Software or a derivative of it on a device which is not a standard PC or server. Examples of such devices include cell phones, PDAs, cars, factory controllers, routers and printers.
   
  2. Term: Upon downloading and installing the Software, you will either (i) enter into the extended term of license agreement for continued use of the Software pursuant to Paragraph 3, or (ii) promptly cease all use of the
Software and send written certification to the LICENSOR that you have removed all Software from your system and destroyed or returned all related documentation provided. Failure to comply with (i) or (ii) above shall create a license
for the Software in accordance with the terms and conditions of LICENSOR’s then-current Software License Agreement for the Professional/Enterprise Edition of the product at the then-current list price, for which CUSTOMER shall be liable.
   
 

3. Extended Term. For CUSTOMER to obtain a license key to use the Software in accordance with the terms of this License, CUSTOMER must provide LICENSOR with the following:

a. CUSTOMER’S LOGO. CUSTOMER agrees to provide LICENSOR with CUSTOMER’S Logo for unlimited use by LICENSOR for marketing purposes.

b. MARKETING QUOTE. CUSTOMER agrees to provide LICENSOR with CUSTOMER’S comments regarding the SOFTWARE that LICENSOR may use for marketing purposes.

c. REFERENCE. CUSTOMER agrees to provide LICENSOR with a contact person employed by CUSTOMER who is familiar with CUSTOMER’S use of the Software. CUSTOMER agrees that LICENSOR may use such person as a reference for marketing purposes. CUSTOMER and its contact person shall cooperate with LICENSOR’S potential customers who may contact such reference person by reasonably providing information requested.

d. CASE STUDY. CUSTOMER agrees to complete and return LICENSOR’S Case Study Questionnaire. LICENSOR may require and CUSTOMER agrees to update the Case Study Questionnaire on a yearly basis, if requested in writing by LICENSOR. The Case Study Questionnaire is an intensive, detailed description and analysis of a single project, program, or instructional material in the context of its environment. A copy of the Case Study Questionnaire may be found at http://www.themidnightcoders.net/internalapps/casestudyq.aspx
   
  4. Title: LICENSOR retains all proprietary rights and title to the Software and any modifications, and no ownership of any part of the Software is hereby transferred to CUSTOMER.
   
  5. Security: CUSTOMER understands and agrees that the Software contains trade secrets belonging to the LICENSOR, and will take all reasonable steps to protect its confidentiality. CUSTOMER acknowledges that the Software is the property of LICENSOR and contains confidential information. CUSTOMER agrees that, other than to its employees, it will not provide a copy of the Software nor divulge any details of it to any person without the prior consent in writing of the LICENSOR.
   
  6. Limitation of Warranties and Liability: LICENSOR SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR THE SOFTWARE, INCLUDING ANY LIABILITY FOR NEGLIGENCE. LICENSOR MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION. LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CUSTOMER MAY HAVE CERTAIN STATUTORY RIGHTS TO WHICH THESE EXCLUSIONS DO NOT APPLY. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
   
  CUSTOMER is responsible for the selection of the Software to achieve its intended results, and for the installation, use and results obtained from the Software. LICENSOR does not warrant that use of the Software will be uninterrupted or error free, nor that program errors will be corrected.
   
  The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (High Risk Activities). Accordingly, LICENSOR and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
   
  The cumulative liability of LICENSOR to the CUSTOMER for all claims relating to the Software, in contract, tort, or otherwise, shall not exceed the total amount of all license fees paid to LICENSOR by the CUSTOMER for the Software.
   
  IN NO EVENT SHALL LICENSOR BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION AND LOST DATA, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
   
  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATION MAY NOT APPLY TO YOU.
   
  7. Taxes: CUSTOMER agrees to pay (and to reimburse LICENSOR on request if LICENSOR is required to pay) any sales, use, value added (VAT), consumption or other tax (excluding any tax on LICENSORs net income) or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on CUSTOMERs use or license of the Software.
   
  8. Indemnification: CUSTOMER shall indemnify, defend (at LICENSOR's option), and hold harmless LICENSOR and its supplier from any and all claims, actions filed against, judgments, losses, damages, costs and expenses (specifically including without limitations, attorneys' fees) incurred by LICENSOR (or its suppliers, agents, resellers or other representatives) for CUSTOMER's i) misuse of the Software; ii) failure to comply with any requirement of this
License; and/or any use of the Software that infringes upon any third party's intellectual property rights.
   
  9. Miscellaneous: This Agreement, the license granted hereunder, the Software and any modifications thereto may not be assigned or in any way transferred without the prior written consent of LICENSOR. The terms of this Agreement shall be construed in accordance with the substantive laws of the State of Texas, United States of America, without giving effect to the principles of conflict or choice of law of the state. The original of this Agreement has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. LICENSOR and CUSTOMER exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement. If any provision of this Agreement is held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes all prior written and oral communications. This Agreement may not be modified except by a written agreement signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a written agreement signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
   
  10. U.S. Government Restricted Rights: The Software and Documentation are commercial items as that term is defined in 48 C.F.R. 2.101 (October 1995) consisting of commercial computer software and commercial computer software documentation as such terms are used in 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995). If the CUSTOMER hereunder is the U.S. Government or any agency or department thereof, the Software and Documentation are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Licensor is Midnight Coders, LLC, 6315 Campbell Rd, #203, Dallas TX 75248.
   
  11. Export Control: None of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Departments list of Specially Designated Nationals or the U.S. Commerce Departments Table of Denial Orders. By downloading or using the Software, CUSTOMER agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, CUSTOMER agrees to comply with all relevant export laws and regulations of the United States and any local laws in its jurisdiction that may impact its right to import, export or use the Software, and represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.
   
  12. Arbitration: CUSTOMER agrees that all disputes arising out of or relating to this Agreement shall be finally settled by arbitration conducted in Dallas, Texas, United States of America, under the rules of commercial arbitration of the American Arbitration Association. Both parties shall bear equally the cost of arbitration (exclusive of legal fees and expenses, all of which each party shall bear separately). All decisions of the arbitrator(s) shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, in the event of breach by CUSTOMER of its obligations hereunder, LICENSOR may seek injunctive or other equitable relief in any court of competent jurisdiction.
 
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