GemTalk Systems License Agreement

For GemStone/S 64 Bit Web Edition – Starter

NOTICE: BY DOWNLOADING AND INSTALLING, COPYING, OR OTHERWISE USING THE
SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT
("AGREEMENT"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY
NOT DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE. "YOU" MEANS THE NATURAL
PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT, YOUR
EMPLOYEES, AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. YOU
SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY
CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.

DEFINITION. As used in this Agreement:

"Key File" means a form of computer code contained in the Software which enables the operation of the
Software, yet limits the capacity and operation of the Software Products to values contained therein.

1. GRANT AND USE RIGHTS FOR SOFTWARE

1.1 License. This Agreement grants You a limited, non-transferable, non-exclusive, limited right to use
the Software in object code form subject to the terms of this Agreement, and the capacity and
operational limitations specified in the included Key File, if present. "Software" means software products
that are licensed to you under this Agreement, including, but not limited to, any related components
provided with the Software, application programming interfaces, associated media, printed materials, online
or electronic documentation, and any updates and maintenance releases thereto. Open source software
components provided with the Software are licensed to you under the terms of the applicable license
agreements included with such open source software components. The open source software licenses
can be found in the “licenses” directory in the Software or other materials accompanying the Software.
1.2 License Limitations. You may not remove any titles, trademarks or trade names, copyright notices
legends, or other proprietary markings on the Software. You are not granted any rights to any trademarks
or service marks of GemTalk Systems, LLC ("GemTalk"). GemTalk retains all rights not expressly
granted to you in this Agreement.
1.3 Restrictions. Except as expressly permitted by this Agreement or by applicable law, You may not:
(i) sell, lease, assign, license, sublicense, distribute, or otherwise transfer in whole or in part the Software;
(ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the
Software;
(iii) modify or create derivative works based upon the Software;
(iv) use the Software except on equipment You own or lease (including rental of a virtual server);
(v) use the Software for more than one production database (this does not limit use for development,
testing, or disaster recovery); or
(vi) create, develop, license, install, use, or deploy any software or services to circumvent, enable,
modify, or provide access, permissions, or rights which violate the technical restrictions in the
Software.
If You wish to exercise any rights to reverse engineer to ensure interoperability in accordance with
applicable law, You must first provide GemTalk with written notice and all reasonably requested
information to [email protected] within 30 days and permit GemTalk to assess your claim and, at
GemTalk's sole discretion, to make an offer to provide alternatives that reduce any adverse impact on
GemTalk's intellectual property or other rights.
2. TITLE
GemTalk retains all right, title, and interest in and to the Software and in all related copyrights, trade
secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights,
including registrations, applications, renewals, and extensions of such rights.
3. SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED
GemTalk will not provide any support services under this Agreement. This Agreement does not give you
any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software
developed by GemTalk at any time in the future. GemTalk may use any technical information you provide to
GemTalk for any GemTalk business purposes without restriction, including for product support and
development. GemTalk will not use information in a form that personally identifies you.
4. TERM AND TERMINATION
Unless earlier terminated in accordance with this Agreement, GemTalk may terminate this Agreement
immediately upon notice if You fail to comply with any term of this Agreement. In the event of termination,
You must remove and destroy all copies of the Software, including all backup copies, from the server and
all computers and terminals You own, possess or control and on which the Software is installed. The
provisions regarding title, exclusion of warranty, and limitation of liability will survive termination or
expiration of this Agreement.
5. EXCLUSION OF WARRANTY AND LIMITATION OF LIABILITY
5.1 EXCLUSION OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
MANDATORY LAW, GEMTALK AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT
ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER
PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH YOU, AND GEMTALK AND
ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT.
5.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
MANDATORY LAW, IN NO EVENT WILL GEMTALK AND ITS LICENSORS BE LIABLE FOR
ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT,
NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.
GEMTALK AND ITS LICENSORS' LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY
EVENT, EXCEED THE LICENSE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE LICENSED
TO YOU UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER
GEMTALK OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.
 6. GENERAL
6.1 Entire Agreement. This Agreement sets forth GemTalk's entire liability and your exclusive remedy with
respect to the Software and supersedes the terms of any communications or advertising with respect to the
Software. You acknowledge that this Agreement is a complete statement of the agreement between you and
GemTalk with respect to the Software, and that there are no other prior or contemporaneous
understandings, promises, representations, or descriptions with respect to the Software.
6.2 Headings. Headings under this Agreement are intended only for convenience and shall not affect the
interpretation of this Agreement.
6.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights
under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or
any rights under it waived, by a written document executed by the party against which it is asserted.
6.4 Severability. If any provision of this Agreement is found illegal or unenforceable, it will be
enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of
this Agreement will not be affected.
6.5 Governing Law. This Agreement will be governed by Oregon law and the United States of
America, without regard to its choice of law principles. The United Nations Convention for the International
Sale of Goods shall not apply.
6.6 Government Restrictions. You may not export or re-export the Software except in compliance
with the United States Export Administration Act and the related rules and regulations and similar non-
U.S. government restrictions, if applicable. The Software and accompanying documentation are deemed to be
"commercial computer software" and "commercial computer software documentation," respectively,
pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification,
reproduction, release, performing, displaying, or disclosing of the Software by the U.S. Government shall be
governed solely by the terms of this Agreement.
6.7 Export Controls. The Software is of United States origin and is provided subject to the U.S.
Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the
foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen,
national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or
Syria, or any other country to which the United States has prohibited export transactions; (2) you are
not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of
Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons
List or Entity List; and (3) you will not use the Software for, and will not permit the Software to be
used for, any purposes prohibited by law, including, without limitation, for any prohibited development,
design, manufacture or production of missiles or nuclear, chemical or biological weapons.
6.8 Contact Information. If you have any questions about this Agreement, or if you want to contact
GemTalk for any reason, please direct all correspondence to: GemTalk Systems, LLC, 15220 NW
Greenbrier Parkway, Suite 240, Beaverton, OR 97006, United States of America or email
[email protected].
7. SOFTWARE-SPECIFIC TERMS AND CONDITIONS
In addition to the above sections, the Software is subject to the following terms and conditions. In
the event of any conflict between the Software-specific terms and conditions and sections 1-6 of this
Agreement, the Software-specific terms and conditions shall control.
Subject to the terms of this Agreement, GemTalk grants you a limited, non-transferable, non- exclusive
license to add code to those elements of the Software made available to you in source code form.