forked from controlm/automation-api-community-solutions
-
Notifications
You must be signed in to change notification settings - Fork 0
/
LICENSE
232 lines (232 loc) · 16.3 KB
/
LICENSE
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
<html>
<body>
<p>
Rev. 03-16-2017
</p>
<p>
<strong>CONTROL-M DEVELOPERS KIT LICENSE AGREEMENT</strong>
</p>
<p>
BY OPENING THE PACKAGE, INSTALLING, CLICKING “AGREE”
OR “YES”, DOWNLOADING, OR USING THE CONTROL-M AUTOMATION DEVELOPERS KIT AND/OR
THE MATERIALS WITHIN THE KIT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS
AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS AND THE TERMS OF ANY
THIRD-PARTY FILES OR PROGRAMS EMBEDDED IN THE CONTROL-M AUTOMATION DEVELOPERS
KIT (SUCH THIRD-PARTY TERMS ARE FOUND IN THE APPLICABLE INSTALLATION
INSTRUCTIONS, RELEASE NOTES, TEXT FILE, OR DISTRIBUTION FILE). IF YOU DO NOT
AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE CONTROL-M AUTOMATION
DEVELOPERS KIT. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE
TO USE THE CONTROL-M AUTOMATION DEVELOPERS KIT.
</p>
<p>
This Control-M Developers Kit License Agreement
(“<b><u>Agreement</u></b>”) is an agreement between the entity or individual
entering into this Agreement (“<b><u>Licensee</u></b>”) and BMC Software, Inc.,
a Delaware corporation (“<b><u>BMC</u></b>”), located at 2103 CityWest Blvd.,
Houston, Texas 77042. In addition to the restrictions imposed under this
Agreement, any other usage restrictions contained in the Control-M Automation
Developers Kit’s installation instructions and release notes shall apply to Licensee’s
use of the Control-M Automation Developers Kit and all materials contained
therein.
</p>
<p>
1. <b><u>SCOPE OF AGREEMENT</u>.</b> This
Agreement governs Licensee’s use of the Control-M Automation Developers Kit and
the materials it contains (collectively, the “<b><u>BMC Kit</u></b>”).
</p>
<p>
2. <b><u>LICENSE</u>. </b>Subject to this
Agreement, BMC grants Licensee a non-exclusive, non-transferable,
non-sublicensable, revocable (per Section 3 of this Agreement), and
royalty-free right under trade secrets rights and copyrights to use the BMC Kit
for the following purposes: (a) to exercise the definition of workflows in Control-M
code format; (b) to run workflows in work bench mode; and (c) to use the APIs
to define and activate work flows made in Control-M code format with the
version of the Control-M software for which Licensee is licensed (“<b><u>Control-M
Product</u></b>”). The use of the BMC Kit as described in Section 2(c) above is
contingent on Licensee having a valid license to the Control-M Product.
</p>
<p>
<b>3. <u>TERMINATION</u></b>. This Agreement
terminates automatically if Licensee breaches any of its terms. Use of the BMC
Kit as described under Sections 2(a) and 2(b) above in a non-development
environment or use of the BMC Kit as described in Section 2(c) above without
having a valid license to the Control-M Product will be considered a breach of this
Agreement. Either party may terminate this Agreement without cause. Upon termination,
Licensee must cease use of the BMC Kit and the BMC Kit must be promptly
destroyed and removed from any computer system.
</p>
<p>
<b>4. <u>OWNERSHIP</u>. </b>BMC, or its affiliates
or licensors, retains all right, title, and interest in the BMC Kit and copies thereof,
and any intellectual property, informational, industrial property, and
proprietary rights therein. The BMC Kit is protected by applicable copyright
and trade secret rights and may be protected by patent and other intellectual
and industrial property laws. BMC neither grants to Licensee any license to any
BMC patents nor transfers any rights of ownership in the BMC Kit to Licensee.
</p>
<p>
<b>5. <u>CONFIDENTIAL AND PROPRIETARY
INFORMATION</u>. </b>The
BMC Kit contains valuable confidential information and trade secrets of BMC. Licensee
agrees to use all reasonable efforts to prevent the unauthorized use, copying,
publication, or dissemination of the BMC Kit. Licensee may not disclose the
BMC Kit or any part thereof to any third party; provided, however, Licensee may
disclose the BMC Kit, or parts thereof, to Licensee’s employees provided that
such employee (i) is one that needs to receive the disclosure of the BMC Kit in
order to install, use, support or maintain the BMC Kit, and (ii) has
obligations of confidentiality with regard to the BMC Kit, which are at least
as protective of BMC’s confidential information and trade secrets as the
provisions of this Agreement.
</p>
<p>
<b>6. <u>INDEMNIFICATION</u>. </b>If a third party asserts
a Claim (as defined herein) against BMC, Licensee will at its own expense defend
or settle the Claim and indemnify and hold harmless BMC, its affiliates, and
licensors, and each of their respective employees, officers, directors, and
representatives from and against any loss, claim, liability, damage, action or
cause of action (including reasonable attorneys’ fees) arising out of or
relating to any third party claim concerning Licensee’s use of the BMC Kit in
violation of this Agreement (a “<b><u>Claim</u></b>”). Licensee will not bind BMC
to a monetary obligation in a settlement or compromise, or make an admission on
behalf of BMC, without obtaining BMC’s prior consent.
</p>
<p>
<b>7. <u>DISCLAIMER OF WARRANTIES</u>. </b>THE BMC KIT IS PROVIDED
“AS IS”, WITH ALL FAULTS. BMC, ITS AFFILIATES, AND LICENSORS SPECIFICALLY
DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET
ENJOYMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE BMC KIT WILL BE
UNINTERRUPTED OR VIRUS OR ERROR FREE, THAT THERE ARE NO DEFECTS, OR THAT ANY DEFECT
IN SUCH CAN BE CORRECTED.</p>
<p>
<b>8. <u>LIMITS ON BMC’S LIABILITY</u>. </b>NEITHER BMC, ITS
AFFILIATES OR LICENSORS, WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT,
THE USE OF THE BMC KIT, OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE
BMC KIT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME,
AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF BMC OR WHETHER SUCH DAMAGES
RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. BMC’S LIABILITY FOR
DIRECT DAMAGES UNDER THIS AGREEMENT, INCLUDING FOR INFRINGEMENT CLAIMS, IS
LIMITED TO THE GREATER OF (I) THE AMOUNT PAID BY LICENSEE FOR THE BMC KIT, IF
ANY, AND (II) $100.</p>
<p>
<b>9. <u>VERIFICATION</u>. </span></b>If requested by BMC, Licensee
will deliver to BMC written certification relating to Licensee’s use of the BMC
Kit in compliance with the terms of this Agreement. BMC may audit Licensee’s use
of the BMC Kit to confirm such compliance.
</p>
<p><b>10. <u>EXPORT CONTROLS</u>. </b>Licensee represents and
warrants that it: a) will comply with the United States Export Administration
Regulations and other U.S. or foreign export regulations; b) no individual
accessing or using the BMC Kit is a citizen of or from an embargoed country
(currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from
receiving the BMC Kit under such regulations; d) will not acquire the BMC Kit for
a person who is restricted under such regulations; e) will not use the BMC Kit in
contradiction to such regulations; and f) will not use the BMC Kit for
prohibited uses, including but not limited to nuclear, chemical, missile or
biological weapons related end uses. For BMC Kit exported from Ireland, EC No.
428/2009 sets up a Community regime for control of exports of dual-use items
and technology, and it is declared that this BMC Kit is intended for civil
purposes only. Therefore, Licensee agrees to comply with both the U.S.
regulations and those E.U. regulations and will not export in violation of the
regulations and without all proper licenses. Any failure to comply with these
regulations will result in Licensee forfeiting all rights to the BMC Kit.
</p>
<p>
<b>11. <u>GOVERNING LAW AND DISPUTE RESOLUTION</u></b>. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“<b><u>Controversy</u></b>”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
</p>
<p>
The United Nations Convention on Contracts for
the International Sale of Goods shall not apply to this Agreement. Nothing in
this Agreement shall be deemed as preventing either party from seeking
immediate injunctive relief from any court having jurisdiction over the parties
and the subject matter of the dispute.
</p>
<p>
<b>12. <u>U.S. FEDERAL ACQUISITIONS</u>. </b>This Section applies
only to acquisitions of the commercial BMC Kit subject to this Agreement by or
on behalf of the United States Government, or by any prime contractor or
subcontractor (at any tier) under any contract, grant, cooperative agreement or
other activity with the United States Government. In the event the BMC Kit is delivered
to the United States Government, the United States Government hereby agrees
that the BMC Kit qualifies as “commercial items” within the meaning of the
Federal acquisition regulation(s) applicable to this procurement. The terms and
conditions of this Agreement shall pertain to the United States Government’s
use and disclosure of the BMC Kit, and shall supersede any conflicting
contractual terms and conditions. The following additional statement applies
only to acquisitions governed by DFARS Subpart 227.4 (October 1988):
“Restricted Rights – Use, duplication and 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 (Oct.
1988).”
</p>
<p>
<b>13. <u>ASSIGNMENT AND TRANSFERS</u>. </b>Licensee may not assign
or transfer the BMC Kit separate from this Agreement, and may not assign or
transfer this Agreement except in the event of a merger with or into, or a
transfer of all or substantially all of Licensee’s assets to, a third party who
assumes all of Licensee’s liabilities and obligations under the Agreement, and
expressly agrees in writing to be bound by and comply with all of the terms of this
Agreement. Except as specifically authorized by applicable law, any attempt to
assign or transfer this Agreement in violation of this provision will be null
and void and be treated as a violation of BMC’s intellectual property rights or
use outside the scope of this Agreement.
</p>
<p>
<b>14. <u>DATA PROTECTION</u>. </span></b>(a) Licensee acknowledges
that BMC neither requires nor needs Licensee to (i) send BMC any personal data
collected by Licensee (“<b><u>Licensee Collected Data</u></b>”) or (ii) give
BMC access to any Licensee Collected Data. Consequently, Licensee remains
responsible for either filtering, making anonymous, encrypting such Licensee Collected
Data or for having proper procedures in place to prevent Licensee Collected
Data from being sent to or accessed by BMC. (b) In the course of normal
business, BMC may collect and process personal information related to the Licensee
(mainly contact and related information) in order to perform its obligations
under this Agreement, such information being referred to hereinafter as “<b><u>Licensee
Contact Information</u></b>”. Where the Licensee Contact Information is to be
processed by BMC, BMC will comply with its Controller and Processor Binding
Corporate Rules Policy found at http://media.cms.bmc.com/documents/External+Privacy+Binding+Coporate+Rules+Policy+-+Aug+04.pdf"
(the “<b><u>BCR</u></b>”)
with respect to compliance with data protection laws and/or regulations. The
BCR policy is incorporated into a BMC corporate wide policy, requiring all BMC
entities, employees and third party providers to comply with and respect the
BCR policy, which is governing the collection, use, access, storage and
transfer of personal data among BMC entities and third-party sub-processors.
The details of the BCR approval of BMC Software are available at
http://ec.europa.eu/justice/data-protection/international-transfers/binding-corporate-rules/bcr_cooperation/index_en.htm. BMC shall in
particular: (i) allow Licensee to access, modify, correct or erase Licensee Contact
Information when necessary; (ii) take reasonable technical and organizational
security measures to maintain the confidentiality and integrity of Licensee Contact
Information and to prevent its unauthorized access, use, or disclosure; and
(iii) refrain from using Licensee Contact Information for any other purpose
than performing its obligations under this Agreement.
</p>
<p><b>15. <u>MISCELLANEOUS TERMS</u>. </span></b>A waiver by a party of
any breach of any term of this Agreement will not be construed as a waiver of
any continuing or succeeding breach.<b> </b>The parties acknowledge they have
read this Agreement and agree that it is the complete and exclusive statement
of the parties and supercedes any prior or contemporaneous negotiations or
agreements, between the parties relating to the BMC Kit and any subject matter related
to this Agreement.<b> </b>This Agreement may be modified only in a mutually-signed,
whether in writing or electronic, agreement between Licensee and BMC. Should
any term of this Agreement be invalid or unenforceable, the remaining terms will
remain in effect. The prevailing party in any litigation is entitled to recover
its attorney’s fees and costs from the other party. Any delay or failure of
any party to perform any obligation under this Agreement caused by governmental
restrictions, labor disputes, storms or natural disasters, emergency, or other
causes beyond the reasonable control of the party, will not be deemed a breach
of this Agreement; provided, however, this provision does not apply to the
payment of monies or any breach of Section 5. The parties have agreed that this
Agreement and the documents related thereto be drawn up in the English
language. Les parties exigent que la présente convention ainsi que les
documents qui s’y rattachent soient rédigés en anglais.
</p>
</body>
</html>