Elastra Development License Agreement

 

"We," "us," and "our" refers to Elastra Corporation, for and on behalf of itself and its subsidiaries and affiliates under common control. "You" and "your" refers to the individual or entity that wishes to use the programs from Elastra. "Programs" refers to the Elastra software product and associated documentation you wish to download and use . "License" refers to your right to use the programs under the terms of this agreement. This agreement is governed by the substantive and procedural laws of California.

 

We are willing to license the programs to you only upon the condition that you accept all of the terms contained in this agreement.

 

LICENSE RIGHTS

 

We grant you a nonexclusive, nontransferable limited license to use the programs during the term of this agreement only for the purpose of developing, testing, prototyping and demonstrating your Application Infrastructure, and not for any other purpose. As used in this agreement, an "Application Infrastructure" is an integrated technology infrastructure for managing multiple hosted applications by application service providers. If you use the Application Infrastructure you develop under this license for any internal data processing or for any commercial or production purposes, or you want to use the programs for any purpose other than as permitted under this agreement, you must obtain a production release version of the program by contacting us to obtain the appropriate license. You acknowledge that we may not produce a production release version of the program and any development efforts undertaken by you are at your own risk. We may audit your use of the programs, and you shall be responsible for promptly remedying any noncompliance we discover, including payment of any applicable fees as well as the costs of the audit.

 

Ownership and Restrictions

 

We retain all ownership and intellectual property rights in the programs. The programs may be installed on one computer only, without the use of any virtualization or other remote access technology, and used by one person in the operating environment identified by us. You may make one copy of the programs for archival or backup purposes, provided all copyright and proprietary notices are reproduced.

You may not:

 

    * use the programs for your own internal data processing or for any commercial or production purposes, or use the programs for any purpose except the development of your Application Infrastructure;

    * use any application or Application Infrastructure you develop with the programs for any internal data processing or commercial or production purposes without securing an appropriate license from us;

    * continue to develop your Application Infrastructure after you have used it for any internal data processing, commercial or production purpose without securing an appropriate license from us;

    * remove or modify any program markings or any notice of our proprietary rights;

    * transfer, rent, sublicense or distribute the programs, or otherwise make the programs available in any manner to any third party;

    * use the programs to provide third party training;

    * assign this agreement or give or transfer the programs or an interest in them to another individual or entity;

    * cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the programs;

    * disclose results of any program benchmark tests without our prior consent.

 

Export

 

You agree that U.S. export control laws and other applicable export and import laws govern your use of the programs, including technical data. You agree that neither the programs nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.

Disclaimer of Warranty and Exclusive Remedies

 

THE PROGRAMS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

 

IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS OF OR DAMAGE TO YOUR RECORDS OR DATA. WE WILL NOT BE LIABLE FOR ANY THIRD PARTY CLAIMS AGAINST YOU. OUR ENTIRE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000).

 

Trial Programs Included With Orders

 

We may include additional programs with an order which may be used for trial purposes only. You will have 30 days from the delivery date to evaluate these programs. Any use of these programs after the 30 day trial period requires you to obtain the applicable license. Programs licensed for trial purposes are provided "as is" and we do not provide technical support or any warranties for these programs.

 

No Technical Support

 

Our technical support organization will not provide technical support, phone support, or updates to you for the programs licensed under this agreement.

 

End of Agreement

 

You may terminate this agreement by destroying all copies of the programs. We have the right to terminate your right to use the programs if you fail to comply with any of the terms of this agreement, in which case you shall destroy all copies of the programs.  This agreement will automatically terminate after 30 days after initial download.

 

Relationship Between the Parties

 

The relationship between you and us is that of licensee/licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this agreement shall be construed to limit either party's right to independently develop or distribute software that is functionally similar to the other party's products, so long as proprietary information of the other party is not included in such software.

 

Open Source

 

"Open Source" software - software available without charge for use, modification and distribution - is often licensed under terms that require the user to make the user's modifications to the Open Source software or any software that the user 'combines' with the Open Source software freely available in source code form. If you use Open Source software in conjunction with the programs, you must ensure that your use does not: (i) create, or purport to create, obligations of us with respect to the programs; or (ii) grant, or purport to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in the programs. For example, you may not develop a software program using an program and an Open Source program where such use results in a program file(s) that contains code from both the Elastra program and the Open Source program (including without limitation libraries) if the Open Source program is licensed under a license that requires any "modifications" be made freely available. You also may not combine the program with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the program or any modifications thereto to become subject to the terms of the GPL.

 

Jurisdiction

 

You and Elastra agree to submit to the exclusive jurisdiction of, and venue in, the courts of San Francisco, San Mateo, or Santa Clara counties in California in any dispute arising out of or relating to this agreement.

General

 

You agree that you will not bring a legal action under this agreement more than one year after the cause of action arose. We are not responsible for failure to fulfill any obligations due to causes beyond our control. You agree that we may publicly announce and list you as our customer.

 

Entire Agreement

 

You agree that this agreement is the complete agreement for the programs and licenses, and this agreement supersedes all prior or contemporaneous agreements or representations. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. Any waiver, modification or amendment of any provision of this agreement will be effective only if in writing and signed by duly authorized representatives of the parties.

 

Last updated: 02/18/10

 

Should you have any questions concerning this License Agreement, or if you desire to contact Elastra for any reason, please write:

Elastra Corporation.

160 Pacific Avenue Mall Suite 222,

San Francisco, CA 94111