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Tanuki Software, Ltd.
Server 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.
Section 1 - Grant of License
Effective upon the payment of the license fees, TSI grants the
Licensee a non-exclusive, non-transferable, non-sublicensable, right
and license to use, one or more instances of the Software Program and
documentation, in executable code form only, on a single Computer.
The Licensee may not, under any circumstances, distribute or resell
the Software Program in any form, nor use the Software Program to
construct any product to directly compete with the Software Program.
Section 2 - Definitions
2.1. "Computer" shall mean the physical or virtual computer, server,
workstation, or device on which the Software Program is Licensed to be
used.
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. "Host Id" shall mean an identification string which uniquely
identifies an individual Computer.
2.4. "License Key" shall mean the text file provided by TSI to the
Licensee containing information associating the Software Program, a
Host Id, a list of enabled features, terms of the this Agreement, and
a set of keys used to activate the Software Program.
2.5. "Software Program" shall mean the computer software and License
Key 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 the Licensee receives pursuant
to the terms of this Agreement. 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.
2.6. "Reset Credit" shall mean a credit allowing the Licensee to
generate a new License Key for another Host Id allowing the Licensee
to run the Software Program on a different Computer. All rights to
use the Software Program on the previous Computer are terminated when
the Reset Credit is used.
2.7 "Upgrade Term" shall define the term during which released
versions of the Software Program will be authorized for use by this
license Agreement. This Upgrade Term is displayed within the License
Key.
Section 3 - Scope Of Use
The Software Program can only exist on the Computer identified by the
Host Id mentioned in the License Key provided by TSI. The Licensee is
granted a license to use versions and updates of the Software Program
released prior to the end of the Upgrade Term, or until this license
Agreement is terminated in accordance with Section 8. Access to
specific features may be restricted depending on the features
mentioned in the License Key.
The Licensee may purchase 1-year extensions of the Upgrade Term
(Upgrade) at the then current upgrade price.
This Agreement includes one free Reset Credit for each full year of
the Upgrade Term. Unused free Reset Credits will expire at the end of
the associated license Upgrade Term. Each Reset Credit can be used to
revoke a License Key for a single Computer, allowing this Agreement to
be reused on a different Computer. All rights to run the Software
Program on the revoked Computer are terminated when the Reset Credit
is used, and you agree to destroy all copies of the revoked License
Key. Where you have multiple Agreements with the same features you
will be allowed to share use of Reset Credits between those
Agreements. Additional Reset Credits can be purchased for 25% of the
current price of a new License Agreement, and do not expire.
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.
TSI reserves any and all rights which are not expressly granted to the
Licensee hereunder. 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 they 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.
Section 5 - 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 upgrade fees paid by
Licensee to TSI for the Software Program provided the refund of
upgrade 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.
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 6
(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 5, 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 6 - 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 therefrom.
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 its prior written consent, which
shall not be unreasonably withheld. Whether or not TSI chooses to
so investigate or defend such claim, Licensee shall 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 6.
Section 7 - 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
effected, shall prevent termination by virtue of such default. Should
an insolvency proceeding is 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, the
Licensee will either return to TSI or destroy all copies of the
Software Program, License File and documentation then in your
possession. The 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 the Licensee through injunctive relief.
Section 8 - Export Controls
Licensee shall comply with, and ensure that Licensee sublicensees 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 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 will not be exported or re-exported
in violation of any applicable laws or regulations of any relevant
jurisdiction.
Section 9 - 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 10 - 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 11 - 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.
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 12 - 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 13 - 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 14 - 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.
