Orion Application Server License Agreement

Orion Application Server License Agreement

BEFORE DOWNLOADING THE SOFTWARE, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE. BY ORDERING, DOWNLOADING OR USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING THE LICENSEE TO THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE, DO NOT CONTINUE WITH THE DOWNLOAD.

IronFlare AB ("IronFlare") grants the Licensee (the "Licensee") a non-exclusive and non-transferable License (as hereinafter defined) for the software Orion Application Server (the "Software"), including Documentation (as hereinafter defined). The License permits the Licensee to Use (as hereinafter defined) the Software on a single computer system, (the "System") for use only upon the terms and subject to the conditions contained herein.

1 Definitions

1.1 "Confidential Information" means this Agreement, all Software listings, Documentation, information, data drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Software, source code relating to the software, and any other proprietary information supplied to Licensee by IronFlare.

1.2 "Documentation" means all online help files or written instructions regarding the use of the Software.

1.3 "Use" means utilisation of the Software by loading, transmitting or copying the same into temporary (e.g. RAM) or permanent memory (e.g. hard disk, CD-ROM or other storage device) of the System for the processing of the Software.

2. License

2.1 IronFlare hereby grants the Licensee a non-exclusive, non-transferable and non-assignable right to Use the Software on one (1) System and use the Documentation in connection with Use of the Software (the "License").

2.2 The validity of the License is conditional on payment by the Licensee of a license fee for the Software in accordance with this Agreement. The Software is NOT free or shareware.

2.3 Copies of the Software made in accordance with this Agreement, are covered by the provisions of this Agreement.

3. License Restrictions

3.1 Licensee agrees that it will itself, or through any parent, subsidiary, affiliate, agent or other third party:

3.1.1 not sell, lease, rent, loan, license, sublicense, redistribute, encumber or otherwise deal with any portion of the Software or Documentation or otherwise permit anyone other than the Licensee either directly or indirectly, for payment or otherwise, to make use of or otherwise dispose of the Software or the Documentation; the making of copies of the Software or the Documentation for private use is therefore prohibited;

3.1.2 not decompile, disassemble, or reverse engineer binary portions of the Software or otherwise attempt to derive the source code from such portions, unless and to the extent required under national law;

3.1.3 not create any derivative software or any other software program from the Software or based on the Confidential Information provided by IronFlare;

3.1.4 not use the Software to provide processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a "service bureau" basis;

3.1.5 not provide, disclose, divulge or make available to, or permit use of the Software, the Documentation or the Confidential Information by persons other than Licensee's employees;

3.1.6 maintain accurate and up-to-date records of the number and location of all copies of the Software;

3.1.7 supervise and control that use of the Software and the fulfillment of the Licensee's other obligations is made in accordance with the terms of this Agreement.

4. License Fee

4.1 In consideration of the rights granted herein, the Licensee shall, if purchasing, pay IronFlare the license fee indicated on the Internet site as the Licensee downloaded the Software or any other site that IronFlare informs the Licensee of (the "the License Fee") before the first Use of the Software by the Licensee. In the event of overdue payment, IronFlare reserves the right to charge interest on the amount due at the rate of two per cent per month until the date of payment.

4.2 If the License is prolonged for another one-year-period according to clause 6.1 below, the Licensee shall pay to IronFlare the License Fee or, if applicable, the adjusted License Fee that IronFlare has informed the Licensee of.

4.3 The Licensee shall reimburse IronFlare for all sales, use or other taxes, fees or duties not based on income, arising out of this Agreement.

4.4 If purchasing, payments to IronFlare according to this Agreement shall be made in accordance with IronFlare's instructions on the Internet site as the Licensee downloaded the Software or any other site that IronFlare informs the Licensee of.

5. Upgrades

5.1 Upon payment to IronFlare of the License Fee, the Licensee shall be entitled to receive new versions of the Software during the term of this Agreement ("Upgrades"). Upgrades form a part of the Software and this Agreement shall apply to such Upgrades.

5.2 Upgrades will be made available at the same Internet site as the Licensee downloaded the Software or any other site that IronFlare informs the Licensee of.

5.3 The Licensee may make queries or report errors to IronFlare by means of Electronic Mail. IronFlare is under no obligation to support the Software or to make error corrections.

6. Term and Termination

6.1 This Agreement shall become effective on the first date on which the Licensee Uses the Software (the "Effective Date") and will expire one (1) year from the Effective Date ("the Expiry Date"), unless terminated earlier as provided in this Agreement. This Agreement will be automatically prolonged for an additional one-year-period from the Expiry Date if the Licensee not later than on the Expiry Date pays to IronFlare the Licensee Fee as stated in clause 4.2 above for the following one-year-period.

6.2 Notwithstanding any provisions contained herein, this Agreement may be terminated with immediate effect by IronFlare upon written notification, if Licensee substantially fails to fulfill the Licensee's obligations according to this Agreement.

6.3 The Licensee may terminate this License at any time by destroying the Software, Documentation and all copies thereof.

6.4 Upon termination, the Licensee shall (i) immediately return to IronFlare all Confidential Information and (ii) pay to IronFlare any and all amounts outstanding under this Agreement.

6.5 The termination of this Agreement shall be without prejudice to the rights of the parties accrued up to the date of such expiry or termination. The Licensee shall not be entitled to any refund of fees and other sums paid to IronFlare.

6.6 Clauses 7, 13 and 14 shall survive termination of this Agreement.

7. Intellectual Property Rights

7.1 The Licensee acknowledges that any and all trademarks, copyrights, patents and other intellectual property rights, owned by IronFlare, used or embodied in or connected with the Software and the Documentation, shall be and remain the exclusive property of IronFlare.

7.2 This License does not entail the transfer to the Licensee of IronFlare's rights in the form of, among other things, copyright or, where appropriate, patent rights or any other intellectual property rights to the Software or the Documentation. The License does not include a special patent license, and the Licensee may not, therefore, make use of any actual patent.

8. Warranty and Limitation of Liability

8.1 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

8.2 IronFlare DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR- FREE(INCLUDING, WITHOUT LIMITATION; FREE FROM VIRUS ETC.) OR THAT SUCH ERRORS WILL BE CORRECTED, AND THE LICENSEE IS SOLELY RESPONSIBLE FOR ALL COSTS AND EXPENSES ASSOCIATED WITH RECTIFICATION,LOSS OF DATA, REPAIR OR DAMAGE CAUSED BY SUCH ERRORS.

8.3 IronFlare SHALL NOT BE LIABLE TO THE LICENSEE OR TO ANY OTHER PARTY FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS LICENSE, THE SOFTWARE, ITS USE OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE LAWFULLY EXCLUDED UNDER THE APPLICABLE LAW.

8.4 NOTWITHSTANDING THE GENERALITY OF CLAUSE 8.3 ABOVE, IronFlare EXPRESSLY EXCLUDES LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE IN RESPECT OF THE SOFTWARE HOWSOEVER CAUSED EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.5 IN THE EVENT IronFlare INCURS ANY LIABILITY WHATSOEVER, SUCH LIABILITY IS LIMITED TO THE LICENSE FEE PAID BY THE LICENSEE FOR THE SOFTWARE (EXCEPT FOR DEATH OR PERSONAL INJURY ARISING FROM IronFlare'S NEGLIGENCE).

9. The Licensee's Liability

The Licensee agrees to indemnify IronFlare and hold IronFlare harmless against and from any claim, proceeding, loss, liability, fine, cost and expense (including court costs and reasonable fees for attorneys and other professionals) incurred as a result of (i) the Licensee failing to fulfill the Licensee's obligations or breaching the terms of this Agreement when using the Software, (ii) any failure of the Licensee to pay for, or to have all necessary rights, approvals and licenses required should the Software be interfaced with third party software and/or hardware, and (iii) any use or combination of the Software or any part thereof with any other programs or materials if such use or combination infringes any intellectual property rights of third parties.

10. Severability

In the event that any terms, conditions or provisions contained in this Agreement or any part thereof are found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavour to agree such amendments, which shall in as far as possible effect the intentions expressed therein. In default of such agreement, such invalid term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

11. Assignment

Neither this Agreement nor any rights granted by virtue of it, or resulting from it, may be assigned by the Licensee to others without IronFlare's prior written consent.

12. Benchmarks

The Licensee may publish results of any benchmark or comparison tests run on the Software, only if IronFlare is sent a copy of such results, as well as the actual classfiles or any other files used, or information needed, to perform the benchmarks or tests. Such results shall include information about the hardware used to run the benchmarks or tests.

13. Confidential Information

13.1 The Licensee shall treat all proprietary and/or Confidential Information as strictly confidential. The Licensee hereby agrees that all terms and conditions of this Agreement shall be treated as confidential and shall not be disclosed to others without IronFlare's prior written consent. This confidentiality undertaking shall not apply to any part of the proprietary and/or Confidential Information of which the Licensee can prove (i) was known to it prior to being furnished to it hereunder (as evidenced by written record predating such disclosure), (ii) was or became public knowledge through no fault or breach of the terms of this Agreement by the Licensee, (iii) was received by the Licensee from a third party in good faith and not in breach of any agreement, or (iv) was independently acquired by the Licensee as a result of work carried out by an employee of the Licensee to whom no disclosure of this proprietary and/or Confidential Information was made.

13.2 The Licensee approves IronFlare, when marketing the Software, giving public the fact that the Licensee is a user.

14. Force Majeure

Neither the Licensee nor IronFlare shall be liable for breach of any of the provisions of this Agreement in case of force majeure. Force majeure shall include, but shall not be limited to, inability to supply the Software, material breakdown of its equipment, labour disputes of whatever nature or cause, and any other circumstances reasonably beyond the control of the party claiming that this provision shall apply.

15. Applicable law and arbitration

15.1 This Agreement shall be construed under and governed by the laws of Sweden.

15.2 Any dispute concerning the interpretation and/or application of this Agreement shall be settled by arbitration under the Rules of the Stockholm Chamber of Commerce. Arbitration proceedings shall be held in Stockholm, Sweden. The proceedings shall be conducted in the English language.

15.3 Notwithstanding the provision in clause 15.2, IronFlare may, in its sole choice and discretion, institute proceedings concerning the recovery of any fees and rates unpaid under this Agreement in any court having jurisdiction over the Licensee and also in the District Court of Stockholm, the jurisdiction of which the Licensee hereby expressly and irrevocably submits to.