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Tanuki Software, Ltd.
Development Software License Agreement
Version 1.3
IMPORTANT-READ CAREFULLY: This License Agreement is a legal agreement
between you ("Licensee") and Tanuki Software, Ltd. ("TSI"), under
which TSI grants licenses with respect to computer software,
associated media, printed materials, and may include online or
electronic documentation. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE
YOU INSTALL, COPY, DOWNLOAD OR USE THE SOFTWARE ACCOMPANYING THIS
PACKAGE. BY INSTALLING, COPYING, DOWNLOADING OR USING THE SOFTWARE,
YOU, ON BEHALF OF YOURSELF AND/OR THE BUSINESS YOU REPRESENT, AGREE TO
BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING ALL
TERMS AND CONDITIONS INCORPORATED HEREIN BY REFERENCE. The Licensee
may optionally request that this agreement be signed by both parties:
License Agreement Number: TSILA-____________
Pursuant to this DEVELOPMENT SOFTWARE LICENSE AGREEMENT (the
"Agreement") dated this __th day of ______, 20__ (the "Effective
Date"), _____________________ ("Licensee") and Tanuki Software, Ltd.
("TSI") agree to the following terms and conditions:
Section 1 - Grant of License
Effective upon the payment of the license fees presented in Exhibit 1,
TSI grants to Licensee a non-exclusive, non-transferable,
non-sublicensable right and license to use, reproduce, display, sell,
lease, distribute and transfer copies, directly or indirectly, of the
Software Program and documentation, in executable code form only, as
parts of Licensee Products within the Product Group(s) defined in
Exhibit 1, for the purposes of marketing such Products to Licensee
customers and for internal development of Products, during the period
Licensee's subscription of the TSIMS (as defined in Section 5)
effectively continues. Licensee may continue to market and
distribute Product Versions containing the Software Program so long as
such Product Versions have been completely developed by the end of the
period Licensee's subscription of the TSIMS is active; provided
however that under no circumstances may Licensee develop or continue
to develop any new Product, or new Product Version, using or
containing the Software Program after Licensee discontinues
subscription of TSIMS. Licensee may not, under any circumstances,
distribute or resell the Software Program as a stand-alone product,
nor use the Software Program to create any Product to directly compete
with the Software Program.
Where the Licensee qualifies as a Small Business, as defined in
Section 2.5, the Product Group restriction is removed and all Licensee
Products will be covered by this agreement.
Section 2 - Definitions
2.1. "Community Edition" shall mean versions of the Software Program
distributed in source form under the Tanuki Software, Ltd. Community
Software License Agreement (CSLA), and all new releases, corrections,
enhancements and updates to the Software Program, which TSI makes
generally available under the CSLA.
2.2. "Documentation" shall mean the contents of the website describing
the functionality and use of the Software Program, located at
http://wrapper.tanukisoftware.org
2.3. "Product" shall mean the computer programs, that are provided by
Licensee to Licensee customers or potential customers, and that
contain both the Software Program as a component of the Product, and a
component or components (other than the Software Program) that provide
the material functionality of the Product. If the Product is released
in source form, the Software Program or any of its components may only
be included in executable form.
2.4 "Product Version" shall mean a specific distribution or release of
a Product. Any modifications to the distribution or release which
include changes to program functionality or updated included modules
or libraries constitute a new Product Version.
2.4 "Product Group" shall mean one or more Products or Product
components which are designed as components of a common project,
product, or product suite.
2.5 "Small Business" shall mean a company or organization with less
than 100 employees and annual sales of less than 5 million USD, 4
million EUR, or 400 million JPY, depending on the currency used to
purchase the Software Program, unless otherwise qualified in
Exhibit 1.
2.6. "Software Program" shall mean the computer software and license
file provided by TSI under this Agreement, including all new releases,
corrections, enhancements and updates to such computer software, which
TSI makes generally available and which Licensee receive pursuant to
Licensee subscription to TSIMS. Some specific features or platforms
may not be enabled if they do not fall under the feature set(s)
covered by the specific license fees paid.
Section 3 - Licensee Obligations
Licensee shall be solely responsible for all marketing, manufacturing,
packaging, documentation production, distribution and customer pricing
of the Products, and ensure that the Products and Licensee's such
activities shall be in compliance with the applicable laws and
regulations. Except as otherwise provided in this Agreement, Licensee
shall also assume all responsibility and liability to customers for
related support and assistance. Under no circumstances may Licensee
modify, decompile, reverse engineer or disassemble any executable code
contained within the Software Program nor create or prepare derivative
works of, or attempt to discover or modify in any way the underlying
source code of the Software Program or any part thereof. Licensee
agrees that Licensee will not, nor will Licensee authorize or license
another to, sell, market or license the Software Program, or any
portion thereof, as a standalone computer software program, component
or software development tool, or as a component or components of a
computer software program, the chief marketability and functionality
of which is the Software Program. Licensee further agrees that
Licensee will not publish, present or document the application
programming interface (API) of the Software Program except as required
for specific use within the Product.
Licensee shall ensure that each end user receiving a copy of any
Product shall receive a license agreement containing terms no less
protective of the Software Program than those contained in Exhibit 2,
which shall include the Copyright Notices described therein in a
location that is obvious to Licensee's customers.
Neither the Software Program nor Product may be modified, nor in any
way obfuscate or obstruct the copyright notice and license information
displayed in the console and log files by the Software Program on
startup.
Licensee may extend and/or modify the Community Edition of the
Software Program and distribute under the terms of this agreement
provided that a) the Software Program is only distributed in
executable form, and b) a valid license key is distributed with
Software Program such that the Software Program is able to access the
license key, and c) the Copyright and "Licensed to {Licensee} for
{Product}" notices are clearly visible in the console and log files of
the Software Program on startup, and d) the "Licensed to {Licensee}
for {Product}" notice displays the Licensee and Product values from
the license key file.
Section 4 - Copyright and Trademark
Licensee acknowledges that all copyrights in the Software Program and
the goodwill associated therewith are vested in and belong to TSI.
Section 5 - Maintenance Services
5.1 Scope and Duration
TSI Maintenance Services ("TSIMS") are provided on an annual basis for
the Software Program. The first year of TSIMS shall be included in the
initial fees paid for the license. Successive one (1) year periods of
TSIMS, can optionally be ordered for 25% of the then current rate
established by TSI for an equivalent Agreement. TSI shall provide
Licensee with notice of such renewal, at least thirty (30) days prior
to the end of the current TSIMS period. In the event that Licensee
allows TSIMS to expire, TSI will allow Licensee to obtain TSIMS for
such Licensed Software including any new versions of the Licensed
Software upon payment of 125% of all lapsed TSIMS fees.
For Licensees who have qualified as a Small Business, this status may
be reviewed each time TSIMS is renewed. For Licensees who no longer
qualify as a Small Business, this agreement will continue to cover
existing Products and Product Groups, but additional Product Group(s)
will require their own separate Agreement(s).
5.2 Maintenance Obligations of the Parties
Licensee agrees to provide first line support for the Product and
Software Program to Licensee customers, which support will include
(i) appropriate number of trained personnel available to provide, in a
competent manner, first line support of the Software Program to
Licensee customers, (ii) log of all communication between Licensee and
Licensee customer, as well as a reproducible test case (wherever
possible) and any relevant information for any second line support
cases that have been opened by Licensee with TSI.
Section 6 - Warranty and Limited Liability
Software Warranty: TSI warrants that, for a period of ninety (90) days
from the initial delivery of the Software Program to Licensee, the
Software Program, if used by Licensee in accordance with the
Documentation, shall operate in material conformity with the
Documentation for such Software Program. TSI does not warrant that the
Software Program will meet all of Licensee requirements or that the
use of the Software Program will be uninterrupted or error free. TSI's
entire liability, and Licensee exclusive remedy, under this limited
Software Warranty shall be for TSI (i) to attempt, through reasonable
efforts, to correct any reproducible material nonconformity discovered
within the ninety (90) day warranty period; or (ii) to replace the
nonconforming Software Program with Software Program which conforms to
the foregoing warranty. In the event TSI is unable to cure the breach
of warranty described in this Section 6, after attempting the remedies
described in (i) and (ii) above, Licensee may return the Software
Program and TSI shall refund any license and maintenance fees paid by
Licensee to TSI for the Software Program provided the refund of
maintenance fees shall be limited to the amount representing the
period during which the Software Program showed nonconformity. The
above remedies are available only if TSI is promptly notified in
writing, within the warranty period, upon discovery of the
nonconformity by Licensee and TSI's examination of the Software
Program discloses that such nonconformity exists, and that the
Software Program has not been (i) altered or modified, other than by
TSI, (ii) subjected to negligence, or computer or electrical
malfunctions, or (iii) used, adjusted, or installed other than in
accordance with the Documentation.
TSIMS and Other Services Warranty: TSI warrants that any TSIMS or
other services performed pursuant to the terms of this Agreement shall
be performed in a professional and workmanlike manner consistent with
generally accepted industry standards.
Disclaimer: THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY WITH RESPECT TO THE SOFTWARE PROGRAM, AND TSI EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability: IN NO EVENT SHALL EITHER PARTY'S LIABILITY
ARISING OUT OF THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT
EXCEED THE AMOUNTS PAID OR DUE TO TSI HEREUNDER DURING A FULL YEAR
IMMEDIATELY PRECEDING SUCH EVENT. IF SUCH LIABILITY RELATES TO
PARTICULAR ITEMS OF SOFTWARE PROGRAM OR SERVICES PROVIDED BY TSI, SUCH
LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR THE RELEVANT SOFTWARE
PROGRAM OR SERVICES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY
FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF
THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION
MAY BE BROUGHT AGAINST TSI LATER THAN ONE (1) YEAR AFTER THE CAUSE OF
ACTION OCCURRED. EXCEPT FOR CLAIMS MADE UNDER SECTION 7
(INDEMNIFICATION), IN NO EVENT SHALL TSI BE LIABLE FOR ANY CLAIMS,
DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST
LICENSEE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE
OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Warranty Claims: Any claims made by Licensee for the breach of a
warranty set forth in this Section 6, shall be made in writing and
delivered to TSI by the end of the applicable warranty period, and
Licensee shall provide TSI a reproducible test case, if applicable,
demonstrating the breach of warranty.
Section 7 - Indemnification
TSI warrants that the use or distribution of unaltered Software
Program(s), or the exercise of the licenses granted hereunder, will
not infringe any copyright or patent, or other intellectual property
rights of any third party, and TSI has all rights necessary for the
grant of the rights and licenses granted by this Agreement. TSI agrees
to indemnify, defend and hold Licensee harmless from any and all
actions, causes of action, claims, demands, reasonable costs,
liabilities, reasonable expenses (including reasonable attorney's
fees) and damages (collectively, a "Loss" or "Losses") arising from
any claim that the Software Program infringes any copyright or patent,
or other intellectual property right of a third party, provided,
however:
(1) Licensee shall promptly deliver to TSI notice in writing of any
infringement claim made by a third party, and, if known, specify
in reasonable detail the nature of the claim and the amount, or an
estimate of the amount, of the liability arising there from.
Licensee shall, at TSI's expense, provide to TSI as promptly as
practicable thereafter information and documentation reasonably
requested by TSI to support and verify the claim asserted,
provided that, in so doing, TSI may restrict or condition any
disclosure in the interest of preserving privileges of importance
in any foreseeable litigation.
(2) TSI may assume and retain sole control of the investigation, the
defense or the settlement of any third party infringement claim
made against Licensee or TSI with respect to the Software Program,
including the employment of counsel or accountants, at its cost
and expense. Licensee shall have the right to employ counsel
separate from counsel employed by TSI in any such action and to
participate therein, but the fees and expenses of such counsel
employed by Licensee shall be at Licensee expense. TSI shall have
the right to determine and adopt (or, in the case of a proposal by
Licensee, to approve) a settlement of such matter in its
reasonable discretion. TSI shall not be liable for any settlement
of any claim effected without TSI's prior written consent, which
shall not be unreasonably withheld. Whether or not TSI chooses to
so investigate or defend such claim, Licensee shall reasonably
cooperate with TSI in the defense thereof and shall furnish such
records, information and testimony, and attend such conferences,
discovery proceedings, hearings, trials and appeals, as may be
reasonably requested by TSI in connection therewith.
(3) If such a claim arises, or in either party's judgment is likely to
arise, Licensee agrees to allow TSI, at TSI's option, to either
(i) procure the right to permit the continued exercise of the
rights and licenses in the Software Program granted under this
Agreement; (ii) replace or modify the Software Program so it
be-comes non-infringing, while affording equivalent performance;
or (iii) terminate the license for the infringing Software Program
and upon return thereof by Licensee, refund the unearned portion
of any license fees paid by Licensee for the remainder of the
current term hereof.
(4) TSI shall have no indemnity obligation for claims of infringement
resulting from any combination, operation or use of the Software
Program, or any components thereof, with any software programs or
data not supplied by TSI if such infringement would have been
avoided by use of the Software Program alone. Licensee
acknowledges and agrees that these four items are the exclusive
remedy of Licensee for damages for breach of warranty or
representations contained in this Section 7.
Section 8 - Termination
Should either party commit a material breach of its obligations
hereunder, the other party may, at its option, terminate this
Agreement by written notice to the party in default. Such notice shall
identify and describe the default upon which termination is based. The
defaulting party shall have thirty (30) days from the effective
delivery of the notice to cure such default, which, if affected, shall
prevent termination by virtue of such default. Should an insolvency
proceeding be filed by or against either party, the other party may
terminate this Agreement forthwith by giving a written notice to the
first party. Upon termination of this Agreement, Licensee will either
return to TSI or destroy all copies of the Software Program and
documentation then in Licensee's possession. Licenses to the Software
Program granted in the normal course of business by Licensee to its
customers shall survive termination of this Agreement. Licensee
shall, within thirty (30) days after the date of such termination,
furnish TSI with a certificate of compliance in accordance with this
Section. The parties agree that TSI shall have the right to enforce
the obligations arising under this Section and to enjoin or compel
Licensee through injunctive relief. Licensee may retain a commercially
reasonable number of copies of the Software Program and documentation
solely for the purpose of supporting Licensee customers who purchased
a Product prior to the termination of this Agreement.
Section 9 - Export Controls
Licensee shall comply with, and ensure that Licensee distributors and
resellers comply with, all applicable laws, regulations, rulings and
executive orders of Japan or any other relevant jurisdiction relating
to the export and re-export of the Software Program or any products
containing the Software Program. Licensee shall not directly or
indirectly export or re-export any Software Program or any Products
containing the Software Program unless Licensee have obtained a
license to do so if such a license is required. Licensee further
agree that Licensee take appropriate measure to ensure that the
Software Program or any Products containing the Software Program will
not be exported or re-exported in violation of any applicable laws or
regulations of any relevant jurisdiction.
Section 10 - Entire Agreement
This Agreement, including any attachments, constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, both oral and written,
representations, statements, negotiations and undertakings, with
respect to the subject matter hereof, which such agreements,
representations, statements, negotiations and undertakings are merged
herein. No amendment or modification of this Agreement or any
provision or attachment of this Agreement shall be effective unless it
is in writing and signed by both parties.
Section 11 - Governing Law
The validity, construction and performance of this Agreement shall be
governed by the substantive laws of Japan (excluding conflicts of law
principles). Licensee and TSI agree that any dispute arising out of
this Agreement shall be subject to the exclusive jurisdiction of the
Tokyo District Court of Japan. If any legal action is undertaken to
enforce the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees and costs in addition to any
other relief to which that party may be entitled.
Licensee agrees that the United Nations Convention on Contracts for
the International Sales of Goods will not apply to this Agreement.
Section 12 - Assignment and Benefit
Without the consent of the other party in writing, neither party may
assign this Agreement; provided, however, TSI or Licensee may assign
this Agreement to a wholly-owned subsidiary of the respective
corporation or a corporation in which the shareholders of the
respective corporation own a majority interest of the voting control
provided that the assigning party remains obligated hereunder; further
provided, however, TSI or Licensee may assign this Agreement to
another corporation which acquires or has acquired substantially all
of the stock or assets of the assignor. Where the Licensee had
qualified as a Small Business, and the assignee does not, this
agreement will continue to cover existing Products and Product
Group(s), but additional Product Group(s) will require their own
separate Agreement(s).
This Agreement shall be binding upon and shall inure to the benefit of
Licensee and TSI and each party's successors, subject to the other
provisions of this Section.
Section 13 - 3rd Party Components
(1) The Software Program includes software and documentation
components developed in part by Silver Egg Technology, Inc.("SET")
prior to 2001 and released under the following license.
Copyright (c) 2001 Silver Egg Technology
Permission is hereby granted, free of charge, to any person
obtaining a copy of this software and associated documentation
files (the "Software"), to deal in the Software without
restriction, including without limitation the rights to use, copy,
modify, merge, publish, distribute, sub-license, and/or sell
copies of the Software, and to permit persons to whom the Software
is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be
included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT
HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY,
WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER
DEALINGS IN THE SOFTWARE.
Licensor represents and warrants that the Program does not contain any
code subject to the GNU General Public License ("GPL"), GNU Lesser
GPL, "copyleft" license, or any other license that requires as a
condition of use, modification and/or distribution of such code that
other software incorporated into, derived from, or distributed with
such code be (i) disclosed or distributed in Source Code Program form;
(ii) licensed for the purpose of making derivative works; or (iii)
redistributable at no charge.
Section 14 - Confidentiality
Confidential Information means all technical, business, financial and
other information that is disclosed by either party to the other,
whether orally or in writing, and all the terms and conditions of this
Agreement, and all non-publicly available information. "Confidential
Information" will not include any information (a) that is publicly
available through no breach of this Agreement by either party, (b)
that is independently developed or was previously known by either
party, or (c) that is rightfully acquired by either party from a third
party not under an obligation of confidentiality.
Except as expressly permitted by this Agreement, both parties shall
not, nor shall they permit their respective employees, agents,
attorneys or independent contractors to, disclose, use, copy,
distribute, sell, license, publish, reproduce or otherwise make
available Confidential Information of the other party. Each party
will (a) secure and protect the other party's Confidential Information
by using the same or greater level of care that it uses to protect its
own confidential and proprietary information of like kind, but in no
event less than a reasonable degree of care, and (b) advise each of
their respective employees, agents, attorneys and independent
contractors who have access to such Confidential Information of the
terms of this paragraph. Notwithstanding the foregoing, either party
may disclose the other party's Confidential Information to the extent
required by applicable law or regulation, or by order of a court or
other governmental entity, in which case such party shall so notify
the other party as soon as practicable.
The confidentiality obligation hereunder shall survive termination or
expiration of this Agreement.
Section 15 - Payments
All amounts payable are due net 30 days from the invoice date unless
otherwise specified in the invoice. All amounts payable are gross
amounts but exclusive only of any value added tax, sales tax or their
equivalent. If any such tax is or will be chargeable, the Licensee
shall pay the tax to the Licensor and the Licensor shall provide the
Licensee with a tax invoice that meets all conditions necessary to
allow the Licensee to reclaim such tax. If according to applicable law
or regulations the Licensee is liable for any such tax, the Licensee
will account for or pay the tax to the tax authorities. Each Party is
responsible for all taxes (including, but not limited to, taxes based
upon its income) or levies imposed on it under applicable laws,
regulations and tax treaties as a result of this agreement. In the
event that a withholding tax is payable, and the Licensee is required
to deduct the withholding tax from the payment to the Licensor as
required under applicable laws, regulations and tax treaties, the
Licensee agrees to furnish evidence of such paid taxes to the Licensor
as is sufficient to enable the Licensor to obtain any tax credits
available to it. Such evidence must be translated into English or
Japanese and be provided with the original, unless approved by the
Licensor in writing.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives.
LICENSEE TSI
__________________________ By: ______________________________
Department name Title: ___________________________
__________________________ Date: ____________________________
Licensee's Authorized Signature
___________________________
Typed or Printed Name
___________________________
Title:
___________________________
Date:
___________________________
Street Address
___________________________
City or Town
___________________________
State or Province
___________________________
Zip Code
___________________________
Country
___________________________
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EXHIBIT 1
Licensed Software:
Java Service Wrapper version ____, __________ Edition __ Bit
Licensed Operating System and Hardware Platform:
All platforms
Licensed Software Commercial Restrictions:
None
Licensed Software Use:
Bundle Development / Deployment.
Licensed Software Use Location:
Bundle Development/Deployment Worldwide
Authorized Number of Users:
Unlimited
Licensee Small Business Status:
[ ] Small Business
[ X ] N/A
Licensee Product Group(s) Covered by this Agreement:
FEES:
Software License + first year of TSIMS
$
TSIMS for year 2 and onward will be priced at 25% of the then current
price of a new Software License.
[ ] TSIMS for year 2 and later will be automatically invoiced one
month prior to TSIMS expiring unless previously notified in
writing of a request not to renew.
[ X ] TSIMS for year 2 and later will be invoiced on request.
Requests made after TSIMS has expired will be at 125% of the
regular price.
(Services)
None
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EXHIBIT 2
End User License Terms / Copyright Notice
All End User Licenses shall include provisions that:
(1) the End User is granted only a personal, nontransferable, and
nonexclusive right to use the software only for personal use of
the End User;
(2) Licensee and/or its licensors retain all of their intellectual
property rights in the software, and no title to such intellectual
property is transferred to the End User;
(3) the End User agrees not to reverse assemble, decompile, or
otherwise attempt to derive source code from the TSI software;
(4) Licensee's licensors shall not be liable to the End User for any
indirect, consequential, incidental or special damages arising out
of the use or license of the software, regardless of the theory of
liability (including negligence and strict liability); and
(5) Licensee and/or its licensors will have the right to terminate the
license at any time in the event the End Users misuses the
software;
and
A section concerning 3rd party components shall be provided, in all
End User licenses, which contains at least the following:
The Software Program includes software and documentation components
developed in part by Silver Egg Technology, Inc.("SET") prior to 2001
and released under the following license.
Copyright (c) 2001 Silver Egg Technology
Permission is hereby granted, free of charge, to any person
obtaining a copy of this software and associated documentation
files (the "Software"), to deal in the Software without
restriction, including without limitation the rights to use, copy,
modify, merge, publish, distribute, sub-license, and/or sell
copies of the Software, and to permit persons to whom the Software
is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be
included in all copies or substantial portions of the Software.
メンテナンスサポートサービスの追加情報
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Tanuki Software, Ltd.
Maintenance Support Services Addendum
Version 1.3
Maintenance Support Agreement Number: TSIMS-_____________
This Maintenance Support Services Addendum to the Development Software
License Agreement, number TSILA-_______________ ("Agreement") is
effective on ______ __, ____. All terms and definitions contained in
the Agreement to which this Addendum refers shall apply to the
Software Program and services provided hereunder unless superseded by
the terms below.
1. DEFINITIONS: The following definitions apply to this Addendum.
1.1 "TSIMS" means the annual, prepaid Maintenance Support services
plan provided to Licensee by Tanuki Software, Ltd. ("TSI") which
includes email based technical support during business hours
(wrapper-support@tanukisoftware.com) for the Software Program version
licensed hereunder including any applicable Updates and New Versions.
1.2 "New Version" means a major Software Program release that includes
new product functionality and is denoted by a whole new product
extension number (i.e., 3.3 to 4.0). New Versions shall include the
following deliverables online:
- documentation,
- installation guide,
- authorization codes,
- release notes.
1.3 "Site" means a single physical location, a single purchasing
contact, and a single Licensee support contact where Software Program
is in use. TSIMS must be purchased for all Software Programs at a Site
when TSIMS is renewed at that Site.
1.4 "Updates" means all bug fixes, patches, workarounds, and
enhancements contained in any of the releases of the Software Program
(i.e., 3.3 to 3.4).
2. SERVICES:
2.1 Licensee shall be entitled to the level of service as described in
Section 7 herein.
2.2 TSIMS is provided subject to the terms and conditions set forth in
this Addendum. TSI has no obligation to provide TSIMS unless;
(a) Licensee is in compliance with all terms and conditions of the
Agreement, (b) the Software Program is unmodified by Licensee or any
third party, and is properly maintained by Licensee at the current or
immediately preceding version level, (c) and Licensee provides to TSI
technical support personnel the name of its sole point of contact for
technical support. Additional support services may be available to
Licensee at TSI's current hourly consulting rates.
3.3 Prior to or upon expiration of this Agreement, upon Licensee's
request, the parties hereto will negotiate in good faith an ongoing
Software Program support plan.
3. TERM AND RENEWALS:
3.1 TSIMS shall commence on (a) the day of the Software Program
shipment or (b) the date specified in this Agreement; or (c) as
otherwise specified and agreed to in writing by TSI but in no case not
later than six (6) months from date of Software Program shipment and
will continue for a period of one year from the date established in
(a), (b) or (c) above. If no specific TSIMS start is established, then
TSIMS will commence on the Software Program shipment date. TSIMS may
be renewed for subsequent one (1) year periods subject to then current
TSIMS fees and the execution of a new Maintenance Support Services
Addendum.
4. CONDITIONS AND DISCLAIMER:
4.1 TSI's obligation to provide TSIMS hereunder shall be limited to
the express undertakings described herein and shall not extend to any
software or hardware products, (a) owned by any third party (b)
furnished, modified, revised or repaired by persons other than
employees or agents of TSI, (c) operated under improper or unsafe
conditions, (d) transferred without notice to TSI, or (e) any Licensee
hardware or expendable supplies. TSIMS shall not include, without
limitation, relocation or transfer of the Software Program, or
modifications required to adapt products to other hardware or to other
software not bearing the TSI trademark and not supplied by TSI, or
modifications required to bring any outdated TSI Products to a
revision level acceptable to TSI.
4.2 Licensee shall notify TSI promptly of problems requiring support
or corrective action by TSI. Licensee shall maintain at its own cost
(i) any necessary backup and security of software and any data; and
(ii) the overall performance of the Licensee system.
5. ASSIGNMENT:
The rights to prepaid TSIMS are assignable by Licensee, upon written
notice to TSI, to any successor of Licensee who agrees in writing to
be bound by the terms hereof and pays for the services provided.
6. Standard level Maintenance and Support
6.1 Scope of Services
TSI will provide the following services to all Licensees:
- Answers to Installation and Authorization Questions
- Product Use Guidance
- Problem Diagnosis
- Software Program Configuration Help
- Software Program Updates
- New Media and documentation
- New Versions of the Software Program
These services exclude explicitly:
- Third-Party Products
- Hardware Platform Related Support
- Operating System Related Support
- Integration Advice or Any Other Consulting
- Training. TSI maintains training and consulting departments that
can assist, on a fee-for-service basis, with some or all of the
services explicitly excluded as above.
6.2 Limitation
TSI supports the Software Program as described in the then-current
price book for which an annual TSIMS fee is paid. However, TSI will
fix errors in the current version and the immediately preceding
version of the Software Program. The Licensee will provide TSI with
all the necessary information on the application, the platform, and
the infrastructure at the supported Site. If any of such information
is confidential, the Licensee should notify TSI in accordance with the
confidentiality provision of the License Agreement.
6.3 Levels of Support
1st Level (or First Line Support) Support includes filing the problem
as an issue in TSI's database, querying the TSI database for similar
problems, bugs, and resolutions on the topic and communicating a
resolution or plan for a resolution back to the Licensee.
2nd Level Support includes further research on the issue and includes,
but is not limited to: recreating the problem in house, receiving and
working with pieces of Licensee's code that illustrate the behavior;
debugging Licensee's code and working to resolve the issue. 2nd Level
Support issues are typically assigned to a TSI Product Specialist.
3rd Level Support includes but is not limited to the assistance of
Product Support Specialists and Engineering Level Developers to assist
in debugging code, providing hints to solve the problem, working with
TSI product code to determine root causes.
When the Licensee acquires TSI products through a TSI Partner, it is
expected that the main support channel will be established through
that Partner. In that case, 1st level support will be handled by that
Partner, and TSI will communicate solely with the Partner on
Licensee's issues.
6.4 Priority of an Issue
The Licensee and TSI customer support staff shall jointly set issue
priority levels.
SEVERITY LEVEL 0 - CRISIS - An emergency deployment or production
environment situation where the Software Program is inoperable or
fails catastrophically and there is no workaround.
SEVERITY LEVEL 1 - HIGH - A detrimental situation where one of the
following conditions occurs:
1.) performance of the Software Program degrades substantially under
reasonable loads causing a severe impact on use; or 2.) one or more
primary functions or commands of the Software Program is inoperable.
SEVERITY LEVEL 2 - MEDIUM - Occurs when use of the Software Program is
noticeably affected but reasonably correctable by a workaround,
documentation change, or patch which may be completely resolved and
integrated into a future release.
SEVERITY LEVEL 3 - LOW - An inconvenient situation where the Software
Program is usable but does not provide a function in the most
convenient manner and the Licensee suffers little or no significant
impact.
6.5 Licensee Assistance and Responsibility in Problem Resolution
When filing an issue, Licensee shall make the following information
available to TSI:
- Maintenance Support Agreement Number
- Version (including revision level) of the TSI Software Program
involved and any supporting product of software involved
- Platform (Including Operating System Revision Level) of the
Operating Environment
- Error or other warning or advisory messages which you have been
receiving
- A reproducible test case where applicable
- Any trace, log, and/or console files
- Configuration files
- Severity Level of problem
- Priority Business or other justification for Severity Level 0
priority issues
- Licensee responsibility with regard to assisting in resolving the
Licensee issue includes providing a Licensee on-site technical
contact, whose availability and response should mirror the response
level requested of TSI, to provide resource and operational
assistance.
6.6 Response/Resolution Time
Within the business hours of the Customer Support Engineer responsible
for the issue:
Response Time: For the most prompt service, relevant technical detail
and quickest response time, (generally less than 1 day) issues should
be reported via email at wrapper-support@tanukisoftware.com. Response
to issues reported to Customer Support through fax, or telephone may
have longer response times.
Initial Analysis/Resolution Time:
Crisis Handled on a Case by Case Basis, but initial response will be
within 1 Business Day
High Within 5 Business Days
Medium Within 10 Business Days
Low Subject to Development and Customer Support Priority
Resolution means that Customer Support will use its reasonable efforts
to resolve Licensee issues as prioritized above. Resolution may
include: specification of a workaround; identification of a bug; or
the recognition that additional analysis work needs to be done, on the
part of Customer Support and the Licensee, which will extend beyond
the initial resolution time.
In all cases, resolution of issues by Customer Support will require
the Licensee to assist in the following: documentation and
reproduction of the issue; provision of a Licensee contact person with
whom TSI Customer Support can maintain contact to arrange for
analysis, testing, systems, and other resources and other tasks in
support of resolution of the Licensee's problem and to whom status
reports and requests for resources can be addressed.
Ongoing communication shall be maintained regarding Licensee issue
status and progress towards resolution between TSI Customer Support
and the Licensee's issue contact.
6.7 Notification
The Licensee will, by default, be notified by e-mail of all relevant
updates on the issue since appropriate levels of technical detail are
often best captured and presented via written e-mail.
TSI's Support staff can also maintain telephone contact with the
Licensee, if requested.
6.8 Distribution of Updates
Shipment of Updates and New Versions will be made on a request-only
basis. Requests can be made through an e-mail message.
6.9 Licensee Issues Are Typically Handled by Customer Support
Engineers
This is the primary and usual scenario. Contact is maintained between
the Licensee and the TSI Customer Support Engineer ("CSE") responsible
for the issue. The e-mail address to be used is:
wrapper-support@tanukisoftware.com
