Licensing Information
How AGS Products are Licensed
Server Studio™ family of products are client-side software applications, which are licensed on the “named user” basis. For example, a named user can work from the workstation where Server Studio™ is installed simultaneously with the development, QA and production DBMS servers — each server hosting an unlimited number of database instances. Multiple users can share the same workstation, but each will need to have their own named user license.
Sentinel™ application server is licensed based of the number of “concurrent connections” to individual IBM Informix database instances. For example, Sentinel ™ installation licensed for 3 concurrent connections can simultaneously serve (i) one DBMS server that runs the point-of-sale and the human resources database instances; and additionally, (ii) an inventory management database instance running on a different DBMS server. An unlimited number of Server Studio™ JE clients can work concurrently with each Sentinel ™ installation.
AGS Software License Agreement
This Software License Agreement ("SLA") is a legal agreement by and between you ("Licensee") and Advanced Global Systems, Ltd., a New York, U.S.A. corporation ("AGS") for the AGS software Product identified in ¶1(b) below and it is made and entered into as of the date you (i) download Product and/or (ii) install the Product (the "Effective Date"). By installing, copying, or otherwise using the Product, you agree to be bound by the terms of this SLA. If you do not agree to the terms of this SLA, do not install or use the Product.
1. DEFINITIONS
(a) "AGS Website" shall mean any web site operated by or for AGS at one or more domain name addresses on the World Wide Web of the Internet.
(b) "Product" shall mean AGS software products known as Server Studio™, Server Studio™ JE and Server Studio™ JE Sentinel server, which include computer software and may include associated media, printed materials and "online" or electronic documentation. The Product may include "extensions," "add-ons," or other software applications developed by AGS for use in conjunction with the Product.
(c) "Product Deliverables" shall mean (i) Product, (ii) installation utilities and related documentation, if applicable, (iii) a copy of the Product printed and/or electronic end-user documentation.
(d) "Prerelease Code" shall mean, as to any Product, any portion of the Product(s) provided by AGS to Licensee and identified as prerelease or beta code. Such Prerelease Code (i) may not be at the level of performance and compatibility of the final, generally available product offering, (ii) may not operate correctly and (iii) may be substantially modified by AGS prior to first commercial shipment.
(e) "Updates" shall mean, as to any Product, all public releases thereof made during the term of this SLA that AGS (and/or its suppliers, if applicable) may make available to Licensee subsequent to the Effective Date hereof.
(f) Trial Version" shall mean any copy of the Product or portion thereof for which AGS requires a payment of a licensing fee and Licensee has not paid such licensing fee.
(g) "Version" shall mean the Product release identification scheme generally in the form of X.Y, where X represents a major release or base level version and Y represents a minor release levels.
(h) "Error" shall mean a reproducible instance of adverse and incorrect operation of the Product that impacts Licensee's ability to use a functionality described in the Product documentation.
(i) "Maintenance" shall mean a consecutive twelve (12) months period during which AGS will make available to Licensee (i) each new Version of the Product that AGS publicly releases and (ii) priority access to technical support services during the effective Maintenance period, as more particularly characterized in Section 4 hereof.
(j) "Support Services" shall mean any technical or integration support services by AGS to Licensee related to the Product.
(k) "Licensee" shall mean either (i) if a natural person, you as an individual, or (ii) if a legal entity, one individual within that entity designated to have the sole right to use the Product in the manner provided for in this SLA.
(l) "Retirement" shall mean any Version of the Product that AGS has elected to retire from public distribution and has provided a public notice of the same.
(m) "Confidential Information" means all information a party discloses to the other which has been either (i) characterized in writing as confidential at the time of its disclosure or (ii) orally characterized as confidential at the time of disclosure and is more particularly characterized in Section 10 hereof.
2. LICENSE GRANT
(a) AGS hereby grants to Licensee a nonexclusive license to install a single copy of the Product (and Updates) on a single computer, for access and use by end users at Licensee’s facilities, provided that all such end users comply with all terms and conditions of this SLA.
(b) Licensee may reproduce and distribute an unlimited number of copies of the Product’s Trial Version in object code form only; provided that each copy shall be a true and complete copy, including all copyright and trademark notices, and shall be accompanied by a copy of this SLA. Copies of the Trial Version may be distributed as a standalone product only and may not be included with Licensee’s own product.
(c) Licensee shall register each license of the Product according to the registration requirements set forth in the Product or on AGS Website as of the Effective Date.
(d) Licensee shall not reverse engineer, decompile, disassemble or modify any part of the Product software in any manner, except and only to the extent that such activity is expressly permitted by applicable law without the possibility of contractual waiver.
(e) Licensee shall not sell, rent, or lease the Product.
(f) Licensee shall use the Product’s Trial Version solely for evaluation purposes. Any other type of use, including but not limited to, administrative, commercial or productive support for Licensee’s business activities is expressly excluded.
(g) Licensee may continue to use the Product’s limited functionality that remains unaffected by the expiration of the Trial Version, if any, provided that Licensee complies with all terms and conditions of this SLA.
(h) Licensee hereby agrees to pay the License Fees either directly to AGS or to one of its authorized Distributors, per each copy of the Product’s license purchased. All fees are exclusive of taxes, withholdings, duties, levies, excises or tariffs and Licensee will be responsible for paying all such taxes, withholdings, duties, levies, excises or tariffs, if any.
(i) AGS reserves all rights not expressly granted including, without limitation, modification rights, translation rights, rental rights, and rights to source code. Licensee acknowledges that Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties and that AGS (and/or its suppliers, if applicable) shall retain all copyright, patent, moral, trademark, title and other proprietary and intellectual property in the Product, Product Deliverables and constituent portions thereof, in whole or in part in any form. The Product is licensed to Licensee, not sold.
(j) AGS may provide to Licensee Prerelease Code. The grant of license to use Prerelease Code shall expire upon availability of a commercial release of the Prerelease Code by AGS.
3. UPDATES
(a) All Updates shall be considered part of the Product and subject to the terms and conditions of this SLA. Additional license terms may accompany Updates. By installing, copying, or otherwise using any Update, Licensee agrees to be bound by the terms accompanying each such Update. If Licensee does not agree to the additional license terms accompanying such Updates, Licensee shall not install, copy, or otherwise use such Updates.
4. MAINTENANCE
(a) Licensee may purchase an optional annual Maintenance for the Product from AGS. Upon purchase of Maintenance, AGS will make available to Licensee without additional charge: (i) each new Version of the Product that AGS publicly releases; and (ii) priority access to AGS technical support services for the Product during the effective Maintenance period.
(b) Maintenance fees for the initial annual Maintenance period are due and payable contemporaneously with purchase of the corresponding Product licenses by Licensee. If Licensee chooses to renew Maintenance for subsequent annual Maintenance periods, the annual Maintenance fees shall be due and payable within thirty (30) days of the expiration date of the prior Maintenance period. If payment of Maintenance fees is not received pursuant the terms hereof, AGS shall have the right to discontinue Licensee's Maintenance and shall have no obligation to provide Licensee with Maintenance.
(c) AGS reserves the right, from time to time, to change its standard Maintenance terms and conditions, including the applicable fees. Any change to the Maintenance terms and conditions will not materially reduce the level of support set forth herein. The new Maintenance fees and/or terms and conditions will become effective on Licensee's next annual Maintenance period.
5. SUPPORT SERVICES
(a) This SLA does not include technical or integration support by AGS to Licensee. Technical support may be available from AGS pursuant to a separate agreement. The Support Services identified in this section 5 of SLA, which may include free updates & upgrades to the product may be purchased by (i) calling or visiting the authorized Distributor of your original purchase, (ii) ordering via the AGS Website, or (iii) if ordering electronically at initial time of sale, by selecting the Premium Support Services option. Licensees can also purchase additional Premium Support Services Packs.
(b) AGS may provide Licensee with Support Services. Use of Support Services is governed by the AGS policies and programs that may be more particularly described in AGS-provided materials. Any supplemental software code provided to Licensee as part of the Support Services shall be considered part of the Product and subject to the terms and conditions of this SLA. With respect to technical information Licensee provides to AGS as part of the Support Services, AGS may use such information for its business purposes, including for product support and development.
6. LICENSE TRANSFER
(a) Licensee may permanently transfer all of Licensee’s rights under this SLA, provided Licensee retains no copies, transfers all of the Product (including all components, Updates, the media and printed materials, and this SLA), Licensee provides to AGS notice of Licensee’s name, company, and address and the name, company, and address of the person to whom Licensee is transferring the rights granted herein, and the recipient agrees to the terms of this SLA. If the Product is an upgrade, any transfer must include all prior versions of the Product. If the Product is received as part of the Support Services, any transfer must include all prior Product Deliverables.
7. DISCLAIMER OF WARRANTIES
(a) To the maximum extent permitted by applicable law, AGS (and/or its suppliers, if applicable) provide the Product and any (if any) support services related to the Product ("Support Services") AS IS AND WITH ALL FAULTS, and hereby disclaim all warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the Product, and the provision of or failure to provide Support Services.
(b) THIS SECTION 7 CONTAINS THE ONLY WARRANTIES MADE BY AGS. ANY AND ALL OTHER WARRANTIES OR CONDITIONS OF TITLE OF ANY KIND WHATSOEVER, INCLUDING THOSE FOR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, QUIET POSSESSION, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED WITH REGARD TO THE PRODUCT AND SUPPORT SERVICES, IF ANY. AGS MAKES NO WARRANTY THAT THE PRODUCT WILL OPERATE PROPERLY AND THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCT AND SUPPORT SERVICES, IF ANY, SHALL REMAIN WITH LICENSEE.
8. LIMITATION OF LIABILITY AND REMEDIES
(a) Notwithstanding any damages that Licensee might incur for any reason whatsoever (including, without limitation, all damages referenced hereinabove and all direct or general damages), the entire liability of AGS and any of its suppliers under any provision of this SLA and Licensee's exclusive remedy for all of the foregoing shall be limited to one hundred percent (100%) of the amount having actually been paid by Licensee to AGS under Section 2(h) hereof.
(b) The rights and remedies granted to Licensee under this SLA constitute Licensee's sole and exclusive remedy against AGS, its officers, agents and employees for any and all claims arising in connection with the Products or the Product Deliverables including but not limited to claims regarding AGS' duties to correct any deviations, whether arising under statutory or common law or otherwise.
(c) The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. Licensee releases AGS from all obligations, liability, claims or demands in excess of the limitation.
9. LIMITATION OF LIABILITY AND REMEDIES
(a) All title and copyrights in and to the Product (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Product), the accompanying printed materials, and any copies of the Product are owned by AGS or its suppliers. The Product is protected by copyright laws and international treaty provisions.
(b) Licensee shall not remove any copyright, trademark or patent notices that appear on the Product as delivered to Licensee.
(c) Licensee shall not, at any time, use any name or trademark confusingly similar to AGS’ or licensed third party trademark, trade name and/or product name. Licensee shall undertake no action that will interfere with or diminish AGS right, title and/or interest in AGS’ or licensed third party's trademark(s), trade name(s) or Product name(s).
10. NONDISCLOSURE AGREEMENT
(a) Licensee shall keep confidential the Product Deliverables and other non-public information and know-how disclosed (“Confidential Information”) to Licensee by AGS. Without the prior written consent of AGS, Licensee will not disclose any Confidential Information except in confidence on a "need to know" basis to its immediate employees, or contractors or legal and financial consultants as required in the ordinary course of Licensee's business an employee or contractor under binding obligations of confidentiality substantially similar to those set forth herein.
(b) Confidential Information does not include information which the receiving party can demonstrate: (i) is previously rightfully known to the receiving party without restriction on disclosure; (ii) is or becomes, from no act or failure to act on the part of the receiving party, generally known in the relevant industry or public domain; (iii) is disclosed to the receiving party by a third party as a matter of right and without restriction on disclosure; or (iv) is independently developed by the receiving party without access to the Confidential Information. Each receiving party will at all times, both during the term hereof and for a period of at least 3 years after termination, keep in confidence all such Confidential Information using a standard of care such party uses with its own information of this nature, but in no event less than reasonable care. The receiving party will not use any Confidential Information other than in the course of its permitted activities hereunder. If a receiving party is legally compelled to disclose any of the disclosing party's Confidential Information, then, prior to such disclosure, the receiving party will (i) assert the privileged and confidential nature of the Confidential Information and (ii) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, the receiving party will disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
11. PROHIBITION AGAINST ASSIGNMENT AND SUBLICENSE
(a) This SLA, and any rights or obligations hereunder, shall not be assigned or sublicensed by Licensee (by contract, merger, operation of law, or otherwise).
12. PROHIBITION AGAINST ASSIGNMENT AND SUBLICENSE
(a) Unless terminated pursuant to Section 13, the term of this SLA shall commence on the Effective Date and continue in perpetuity.
13. DEFAULT AND TERMINATION
(a) Without prejudice to any other rights, AGS may terminate this SLA if any of the following events of default occur: (i) if Licensee materially fails to perform or comply with any provision of this SLA; (ii) if Licensee manufactures or distributes any AGS product which is not properly licensed under this SLA or another valid agreement with AGS or a AGS Licensee; or (iii) if Licensee becomes insolvent, enters bankruptcy, reorganization, composition or other similar proceedings under applicable laws, whether voluntary or involuntary, or admits its inability to pay its debts, or makes or attempts to make an assignment for the benefit of creditors.
b) In the event this SLA is terminated pursuant to this Section 13, Licensee must destroy all copies of the Product and all of its component parts within ten (10) days after termination of this SLA. There shall be no refund or adjustment for amounts paid by Licensee to AGS for Product(s) destroyed in accordance with this Section 13(b).
(c) Termination of this SLA as a result of Licensee's default shall result in acceleration of Licensee's obligation to pay all sums Licensee contracted to pay under this SLA.
(d) Sections 2, 4, 8, 10, 14, 15 and 17 of this SLA, shall survive termination or expiration of this SLA.
14. CONTROLLING LAW; ATTORNEYS' FEES
(a) This SLA and all matters relating to this SLA shall be construed and controlled by the laws of the State of New York, and Licensee consents to jurisdiction and venue in the state and federal courts sitting in the State of New York. Process may be served on either party in the manner set forth in Section 15 for the delivery of notices or by such other method as is authorized by applicable law or court rule.
(b) If either AGS or Licensee employs attorneys to enforce any rights arising out of or relating to this SLA, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
15. NOTICES
(a) All notices, authorizations, and requests in connection with this SLA shall be deemed given on the day they are (i) deposited in the U.S.A. or international mails, as applicable, postage prepaid, certified or registered, return receipt requested; or (ii) sent by air express courier, charges prepaid. Such communications shall be addressed to AGS at Advanced Global Systems, Ltd., One West Street, Suite 100, New York, NY 10004, and to Licensee at the address provided by Licensee on the AGS web site at the time of download of the Product.
16. U.S. GOVERNMENT RESTRICTED RIGHTS
(a) Any Product and documentation licensed to or on behalf of the United States of America, its agencies and/or instrumentalities (the "Government") is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software—Restricted Rights at 48 CFR 52.227-19, as applicable, or as set forth in the particular department or agency regulations or rules, or particular contract which provide AGS equivalent or greater protection. Manufacturer is Advanced Global Systems, Ltd., One West Street, Suite 100, New York, NY 10004
17. EXPORT RESTRICTIONS
(a) Licensee agrees not to export or re-export the Product, any part thereof, or any process or service that is the direct product of the Product (the foregoing collectively referred to as the “Restricted Components”), to any country, person, entity or end user subject to U.S. export restrictions.
(b) Licensee specifically agrees not to export or re-export any of the Restricted Components (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, which currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (ii) to any end-user who you know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.
(c) Licensee warrants and represents that no U.S. federal agency has suspended, revoked or denied Licensee’s export privileges.
18. EXPORT RESTRICTIONS
(a) This SLA does not constitute an offer by AGS and it shall not be effective until signed by both parties. Upon execution by both parties, this SLA shall constitute the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. It shall not be modified except by a written agreement signed on behalf of Licensee and AGS by their respective duly authorized representatives. Any statement appearing as a restrictive endorsement on a check or other document which purports to modify a right, obligation or liability of either party shall be of no force and effect.
(b) Neither this SLA, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise.
(c) If any provision of this SLA or license of any particular Product shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions and license for remaining Products, as applicable, shall remain in full force and effect.
(d) No waiver of any breach of any provision of this SLA shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
(e) Licensee shall, at its own expense, promptly obtain and arrange for the maintenance of all non-U.S.A. government approvals, if any, and comply with all applicable local laws and regulations as may be necessary for Licensee's performance under this SLA.