United Kingdom
IMPORTANT NOTICE: Read this License Agreement (“Agreement”) carefully before
using the enclosed Program. You may Use the Program acquired in England, Northern
Ireland, Scotland and Wales only, in accordance with the following terms and
conditions. IF YOU DO NOT AGREE TO BE
BOUND BY THESE TERMS, YOU MAY NOT USE THE PROGRAM. By installing or
using the Program in any way, You acknowledge that You have read, understand
and agree to the terms of this Agreement.
If You do not agree with these terms, promptly return the Program and
package (and all other product contents, including Documentation) with Your
receipt or other proof of purchase to the entity from which You obtained this
product within 30 days and request a refund.
THIS IS A LICENSE AND NOT A SALE.
click the “I agree” button if you
wish to install the program.
If You, Your
company, or Your public agency have signed a written software license agreement
with Sybase (UK) Limited (“Sybase”), Sybase, Inc., or a Sybase Inc subsidiary
or authorized reseller, covering the Use of the enclosed Program, the terms of
the signed license agreement shall take precedence over any conflicting terms
of this Agreement.
1. ABBREVIATIONS AND
DEFINITIONS. Abbreviations and
definitions appear at the end of this Agreement.
2. LICENSE.
Sybase grants to You a non-exclusive, nontransferable, perpetual license to Use
the Program at the location specified on the Order. The Program shall be subject to the applicable usage limitations
based on the type of license purchased, as indicated in the Order. You may Use the Program (and accompanying
Documentation) solely for Your internal business purposes by Your employees,
agents and contractors and on the operating systems specified in the Order,
unless otherwise permitted by the type of license purchased. If the type of license is not indicated in
the Order, each copy shall be licensed for a single Seat on a single Machine. Neither the Program nor this Agreement may
be transferred, sold, assigned, sublicensed or otherwise conveyed (whether by
operation of law or otherwise) to another party without Sybase’s prior written
consent, and payment of any then-applicable fees in accordance with Sybase’s
standard policies. Program may be
transferred to another Machine, site or Operating System Software only upon
written notice and subject to Sybase’s transfer policies and fees then in
effect. If multiplexing hardware or
software (e.g. a TP monitor or application server product) is used, the number
of Seats or Concurrent Users shall include all inputs to the multiplexing front
end. Any and all rights and licenses in
and to the Program not expressly granted herein are reserved by Sybase.
3. ADDITIONAL RIGHTS AND RESTRICTIONS. THERE MAY BE ADDITIONAL RIGHTS AND
RESTRICTIONS SET FORTH IN SUPPLEMENTS OR “PRODUCT SPECIFIC LICENSE TERMS” ON
CARDS OR COMPACT DISKS ACCOMPANYING THE SOFTWARE, WHICH ARE HEREBY INCORPORATED
INTO THIS AGREEMENT. You agree that such Product Specific License Terms
or Supplements may be composed and shall be enforceable in the English
language. The
Product Specific License Terms may grant You the right to distribute “Distributable Components.” In the event You distribute Distributable
Components to third parties, You agree to indemnify, hold harmless and defend
Sybase, its affiliates and suppliers from and against any third party claims,
including court costs and reasonable fees of attorneys and expert witnesses,
arising from the Use or distribution of Your software that includes or contains
the Distributable Components. You shall
include Sybase’s copyright notice (and the copyright notices of Sybase’s
suppliers if required by the Documentation) on all copies of the Distributable
Components.
4. THIRD PARTY PRODUCTS. Third party products that are supplied
by Sybase separately or together with the Program and are accompanied by a
license agreement from the supplier are provided subject to such supplier
license agreement and the terms of this Agreement shall not apply to such third
party products, except that as between You and Sybase, the provisions of this
Section 4 and Section 13 shall apply. SYBASE PROVIDES SUCH THIRD PARTY PRODUCTS
“AS IS” WITHOUT ANY INDEMNITIES OR WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE. Sybase shall
not be obligated to provide any Support or error correction services for such
third party products, but such services may be available from the third party
supplier. Third Party Products not
accompanied by a license agreement from the supplier shall be subject to the
terms of this Agreement.
5. COPY AND
OTHER RESTRICTIONS. You may not
copy the Program except (a) to make a reasonable number of copies of each
Program exclusively for inactive backup or archival purposes, and (b) to make
the number of Secondary Copies indicated in the Order for the Program. You may not modify, reverse engineer,
decompile or disassemble the Program (except as specifically permitted by law
without the possibility of contractual waiver, or expressly permitted in the
Documentation). Transfer of the Program outside the country in which it was
originally delivered to You is not permitted without Sybase's prior written
consent, and is subject to compliance with all applicable export regulations
and restrictions. If the Program
includes more than one component product, Use of all components of the Program
is restricted to the same Machine(s), Seat(s), Concurrent User(s), and/or CPUs,
as applicable, and the Program may not be unbundled for Use on different or
additional Machine(s), Seat(s), Concurrent User(s) or CPUs. You may not Use the
Program for timesharing, rental or service bureau purposes, or otherwise allow
direct or indirect (including over the Internet) access or Use of the Program
by any third party, without Sybase's prior written consent and subject to any
applicable fees. You may contract with
a third party (“Outsourcer”) to operate the Program on Your behalf and for Your
benefit, however, You remain subject to all of the provisions of this Agreement
and shall be liable for Your Outsourcer’s compliance with the provisions of
this Agreement. You shall not remove
any copyright notices or other proprietary notices from the Program, and You
must reproduce such notices on all copies or extracts of the Program. Results of benchmark or other performance
tests run on the Program may not be disclosed to any third party without Sybase's
prior written consent. Upon reasonable
notice to You, Sybase may audit the number of copies of the Program licensed by
You and Your Use of the Program.
6. COPYRIGHT
AND OWNERSHIP. All of the copyright
and intellectual property rights in the Program, Documentation and all copies
thereof are owned by Sybase, or its subsidiaries or their respective suppliers
and are protected by copyright and/or trade secret laws and international
treaty provisions. You acquire only the
non-exclusive, non-transferable right to Use the Program as permitted herein,
and do not acquire any rights of ownership in the Program.
7. SUPPORT. This Agreement does not entitle You to any
Support service or Updates. Updates
must be separately licensed unless You have purchased a Support plan that
entitles You to Updates. Updates shall, upon installation, replace earlier
versions and shall be governed by this Agreement. Updates may be subject to new
or different Product Specific License Terms due to new or different software content
in later versions of the Program. You
may purchase Support at the rates described in Sybase's then current price list
for as long as Sybase offers Support for the Program. If You purchase a Support plan, Sybase will provide You with the
level of Support service corresponding to the fees paid in accordance with
Sybase's then current Support plan descriptions. Sybase shall have no
obligation to provide Support services with respect to: (i) any Program Used on
any computer system other than the specified Machine and operating system; or
(ii) any version of the Program modified by persons other than Sybase. Sybase
reserves the right to make corrections only to the most current generally
available version of the Program. Provided that You are then subscribing to a
Support plan which entitles You to Updates and are current in Your payment of
Support fees, You may transfer a Program to a different Machine or operating
system subject to Sybase then current transfer policies and payment of all
applicable fees, as specified in Sybase's then current price list.
8. U.S.
GOVERNMENT RESTRICTED RIGHTS. The
Program is Commercial Computer Software.
If this license is acquired under a U.S. Government contract, use,
duplication and disclosure of the Program and Documentation by the U.S.
Government is subject to restrictions set forth in this Agreement, which
incorporates all applicable FAR provisions, for example FAR Section 52.227-19.
Sybase reserves all unpublished rights under United States copyright laws.
9. CONFIDENTIALITY. "Confidential Information" shall include the
Program (including methods or concepts utilized therein) and all information
identified by Sybase as proprietary or confidential. Confidential Information shall remain the sole property of Sybase
and shall not be disclosed to any third party without the express written
consent of Sybase; except that You may disclose Confidential Information to
consultants performing services for Your benefit, provided that such
consultants are bound by a written non-disclosure agreement with You protecting
such Confidential Information in a manner consistent with this Agreement. Except with respect to the Program, items
will not be deemed Confidential Information if (i) available to the public
other than by a breach of an agreement with Sybase; (ii) rightfully received
from a third party not in breach of any obligation of confidentiality; (iii)
independently developed by You without access to the Confidential Information;
or (iv) if proven to have been known to You at the time of disclosure. You shall immediately inform Sybase if You
are required to produce Confidential Information by operation of law, and if so
requested by Sybase, shall provide reasonable assistance to Sybase in seeking
to limit such production. A copyright
notice on a Program does not, by itself, constitute evidence of publication or
public disclosure. You shall not
release the results of any benchmark of the Program to any third party without
the prior written approval of Sybase for each such release.
10. FEES. License and Support fees for the Program are due and payable to
Sybase Net 30 days after the invoice date if You have acquired the Program
directly from Sybase; otherwise such fees are due and payable in accordance
with the reseller’s policies. You shall
pay all applicable shipping and handling charges, and sales, use, value added,
personal property, or similar taxes, tariffs or governmental charges, exclusive
of those based upon Sybase's or its reseller’s income and corporate franchise
taxes.
11. TERM. This license is effective until
terminated. You may terminate it at any time by destroying the Program and
Documentation. This license will also terminate if You fail to comply with any
term or condition of this Agreement. Upon such termination, You agree to
destroy the Program and Documentation.
12. LIMITED
WARRANTY. Unless otherwise
specified in the Documentation, for a period of 90 days from the date of
shipment of the Program to You, Sybase warrants that the Program, when properly
Used, will operate in material conformity with its Documentation and the
Program media shall be free of defects.
In the event of a non-conforming Program or defective media, Your sole
remedy shall be, at Sybase’s option, replacement of the defective Program or a
refund of the license fees paid for the affected Program. This limited warranty
gives You specific legal rights. Sybase warranties extend solely to You, the
original licensee.
NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH
RESPECT TO THE PROGRAM, DOCUMENTATION,
SUPPORT OR OTHER SERVICES RELATED TO THE PROGRAM TO BE SUPPLIED HEREUNDER. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND TERMS
WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE
OF DEALING OR OTHERWISE,
INCLUDING WITHOUT LIMITATION ANY IMPLIED TERMS, CONDITIONS OR WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY OF
INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, AND CONDITIONS OF
MERCHANTABLE QUALITY OR
SATISFACTORY QUALITY ARE HEREBY EXCLUDED TO
THE FULLEST EXTENT PERMITTED BY LAW. NO WARRANTY IS MADE REGARDING THE RESULTS TO BE
OBTAINED FROM ANY PROGRAM OR SERVICES, THAT THE PROGRAM WILL BE ERROR FREE,
THAT ALL ERRORS IN THE PROGRAM WILL BE CORRECTED, OR THAT THE PROGRAM’S
FUNCTIONALITY WILL MEET YOUR REQUIREMENTS.
YOU ACKNOWLEDGE YOUR RESPONSIBILITY TO (a) REGULARLY BACK UP DATA, AND
(b) ADEQUATELY TEST PROGRAM PRIOR TO DEPLOYMENT.
13. Infringement
Indemnity. Sybase, at its
own expense, agrees to (i) defend, or at its option settle, any claim or suit
against You on the basis of infringement of any copyright, trade secret or
United States patent (“Intellectual Property Rights”) by Your Use of the
Program, and (ii) pay any final judgment entered against You on such issue or
any settlement thereof, provided (a) You give Sybase sole control of the
defense and/or settlement; (b) You notify Sybase promptly in writing of each
such claim or suit and give Sybase all information known to You relating thereto,
and (c) You cooperate with Sybase in the settlement and/or defense. (You will be reimbursed for all reasonable
out-of-pocket expenses incurred in providing any cooperation requested by
Sybase.) If all or any part of the
Program is, or in the opinion of Sybase may become, the subject of any claim or
suit for infringement of any Intellectual Property Rights, or in the event of
any adjudication that the Program or any part thereof does infringe, or if Your
Use of the Program or any part thereof is enjoined, Sybase, at its expense, may
either: (1) procure for You the right
to Use the Program or the affected part thereof; (2) replace the Program or
affected part; (3) modify the Program or affected part to make it
non-infringing; or (4) if none of the foregoing remedies are commercially and
reasonably feasible, refund the license fees You paid for the Program or the
affected part thereof. Sybase shall
have no obligation to the extent a claim is based upon (A) Use of any version
of the Program other than a current, unaltered version, if infringement would
have been avoided by a current, unaltered version; (B) combination, operation
or Use of the Program with software and/or hardware not delivered by Sybase if
such infringement could have been avoided by not combining, operating or using
of the Program with such software and/or hardware, or (C) any modifications to
the Program which were not made by Sybase.
The above states the entire liability of Sybase, and Your exclusive
remedy, with respect to any infringement or alleged infringement by the Program
or any part thereof.
14. LIMITATION ON LIABILITY. LICENSORS OF SOFTWARE COMPONENTS WHICH ARE
INCLUDED IN SYBASE PRODUCTS SHALL NOT BE LIABLE FOR DIRECT DAMAGES. THE
MAXIMUM AGGREGATE LIABILITY, IF ANY, OF SYBASE AND ANY OTHER MEMBER OF THE
SYBASE GROUP ARISING OUT OF OR UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ARISING OUT OF YOUR USE OF THE PROGRAM OR RELATED SERVICES (WHETHER ARISING UNDER ANY INDEMNITY IN THIS
AGREEMENT, IN CONTRACT, TORT, BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR
OTHERWISE), SHALL NOT IN ANY EVENT EXCEED THE LICENSE OR SERVICE
FEES PAID FOR THE PROGRAM OR SERVICES GIVING RISE TO THE CLAIM. UNDER NO
CIRCUMSTANCES SHALL SYBASE, ANY OTHER MEMBER OF THE SYBASE GROUP OR THEIR COMPONENT
LICENSORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR: (A) LOSS OF
PROFITS, LOSS OR INACCURACY OF DATA, LOSS RESULTING FROM BUSINESS DISRUPTION,
LOSS OF CONTRACTS, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF
GOODWILL, LOST OR WASTED MANAGEMENT TIME OR TIME OF OTHER EMPLOYEES OR
CONTRACTORS; OR (B) INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. NOTWITHSTANDING ANY
OTHER CLAUSE IN THIS AGREEMENT, SYBASE DOES NOT EXCLUDE OR LIMIT ITS LIABILITY
FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FOR ANY LIABILITY
WHICH CAN NOT BE EXCLUDED BY LAW.
“SYBASE GROUP” MEANS SYBASE INC OR ANY GROUP COMPANY OF SYBASE INC OR
ANY COMPANY UNDER COMMON CONTROL (I.E. MORE THAN 50% VOTING CONTROL) WITH
SYBASE INC. THE FOREGOING RESTRICTIONS,
DISCLAIMERS AND LIMITATIONS SHALL REMAIN IN FORCE EVEN IN THE EVENT OF A
FUNDAMENTAL BREACH BY SYBASE OR A BREACH BY SYBASE OF A CONDITION OR
FUNDAMENTAL TERM HEREUNDER.
15. HIGH
RISK ACTIVITIES. The Program and
Third Party Products are not fault-tolerant and are not designed, manufactured
or intended for use or resale in the on-line control of nuclear facilities,
aircraft navigation or communication systems, air traffic control, direct life
support machines, or weapons systems, in which the failure of the Program could
lead directly to death, personal injury, or severe physical or environmental
damage, and Sybase and its suppliers specifically disclaim any express or
implied warranty of fitness for such purposes.
16. FORCE
MAJEURE. Sybase shall not be liable
by reason of any failure or delay in the performance of its obligations
hereunder on account of: acts by You, acts of God or the public enemy, war,
terrorism, riots, strikes, embargo, acts of civil or military authority,
unavailability of communications facilities or energy sources, or any other
cause which is beyond the reasonable control of Sybase.
17. GENERAL. This
Agreement is the entire agreement of the parties with respect to the Program
and services and supersedes all previous and contemporaneous communications,
representations, arrangements, understandings or agreements (both oral and written) regarding the subject
hereof and no representation, condition, understanding or agreement of any
kind, oral or written, shall be binding upon the parties unless incorporated
herein. Each party acknowledges and agrees that it does not enter into this
Agreement on the basis of and does not rely and has not relied upon and shall
have no remedy in respect of any statement, warranty or representation or other
provision made, given or agreed to by the other party to this Agreement
(whether negligently or innocently made) except those expressly referred to in
this Agreement and the only remedy available in respect of any
misrepresentation or untrue statement made to it shall be a claim for breach of
contract under this Agreement. Nothing
in this clause shall operate to limit or exclude liability for fraud. This Agreement
is governed by the laws of England & Wales (other than conflict of law
provisions). It shall not be governed
by the United Nations Convention on the International Sale of Goods, the
application of which is expressly excluded.
The terms of this Agreement supersede the terms of any purchase order or
other document issued or signed by You to authorize Your license of the
Program, except that a purchase order shall be binding as to the identification
of Program and services ordered, the type of license purchased, the fees due
and the site for installation or performance of services, as set forth
therein. Other terms and preprinted
terms on or attached to any purchase order shall be void. If any provision of
this Agreement is held to be unenforceable, such provision shall be limited,
modified or severed, as necessary, to eliminate its unenforceability, and all
other provisions shall remain unaffected.
The failure or delay of either party to exercise any of its rights shall
not be deemed a waiver of such rights, and no waiver of any breach of this
Agreement shall constitute a waiver of any other breach. If You have any questions concerning this
Agreement, write to Sybase (UK) Limited, Attn: Legal Department, Sybase Court, Crown Lane, Maidenhead,
Berkshire SL6 8QZ, United Kingdom.
18. TRANSLATION.
The parties have requested that this Agreement and all documents contemplated
hereby be drawn up in English.
19. ABBREVIATIONS AND DEFINITIONS.
“A” in the column
entitled “Platform/OS” of an “Exhibit A” – denotes a Program edition licensed for
installation on Machines operating on any available operating system or
platform.
"Agreement" - This License Agreement, together with any
applicable Supplements and Product Specific License Terms accompanying the
Program, each Purchase Order and each “Exhibit A”, if any.
“Application License”
or “AP” – The limited right to
install the Program on any server at the single physical location (or approved
hosting site) specified for such license in the applicable Order. A Platform License (“PL”) may also be
required.
“Cluster License”, or
“CL” - The limited right to Use the
Program on any number of Servers at the Site specified for such license in the
applicable Order, but only if each such Server is part of a load-balanced or
failover configuration and in the aggregate provide no greater access to the
Program or any associated data than would be provided by a single Server
operating alone.
“Cold Standby” - A Cold Standby Program shall be limited to the Machine running the operating
system shown on the Order, at a site shown on the Order. A Cold Standby Program is a copy of a
Program that is deployed on a separate Machine as a backup to process data that
is periodically updated from data residing on Customer’s primary production
Machine. In the event of a failure of
the production copy or production Machine, the Cold Standby Program may be Used
to access and process such updated data. A Cold Standby Program may not be
accessed or Used in production at the same time as the primary production
copy. The Cold Standby Program must be
licensed for the same number of Servers, Seats, Concurrent Users, Connections,
or CPUs, as applicable, as the production copy. Programs for which a Cold Standby License is available will be
specified in the then current Price List.
"Concurrent User License" or “CU”. The limited right for a maximum number of
users, as indicated in the applicable Order, to directly or indirectly access a
single server copy of a Program at any one time. Under the Concurrent User license model, each Concurrent User may
only access a single, identifiable licensed server.
“Connection” or “CN” – The Program may only be connected to the number
of applications and/or databases equal to the number of connections set forth in
the applicable Order.
“CPU Fee” or “IC” - The license fee payable by Customer for each copy
of the Program shall be determined by multiplying the number of processors
(“CPUs”) by the applicable rate, each as specified on the Order. In the event that the number of processors
on the Machine is increased, Customer shall report such increase, execute a new
Order and pay an additional amount determined by multiplying the incremental
processors by the then applicable rate per processor set forth in the Price List.
“CPU License”, or “CP”
- The license fee payable by Customer for
each copy of the Program shall be determined by multiplying the total number of
processors on a Machine (“CPUs”) by the applicable rate each as specified on
the Order. In the event that the number
of processors on the Machine is increased, Customer shall report such increase,
execute a new Order, and pay an additional amount determined by multiplying the
incremental processors by the then applicable rate per processor set forth in
the Price List. The number of users
shall be limited only by the capacity of the licensed CPUs, and may include
internal users within the Customer’s organization, and external users outside
of the Customer’s organization accessing the Program via the Internet (“Internet
Users”). Internet Users may not Use the
Program to develop or modify applications or perform other programming tasks,
and may only Use the Program in conjunction with Customer’s applications.
“Developer License” or
“DV” - The limited right to Use the Program on a
Standalone Seat for the sole purposes of evaluation and development and not in
a production environment.
“Development and
Testing License” or “DT” – The limited right
to Use the Program for development and testing purposes only and not in a
production environment. Customer may
install as many copies of the Program as desired on a single Server. A DT license is not limited to a Standalone
Seat
"Documentation" - Installation instructions and user manuals
supplied with the Program.
“E” in the column
entitled “Platform/OS” of an “Exhibit A” - denotes a Program edition licensed for
installation on Machines operating in a UNIX environment other than those
specified as “W” (Workplace) or “S” (High End UNIX).
“Exhibit A” -
a standard form purchase authorizing document made available by Sybase which
may be substituted for a Purchase Order.
“Hot Standby” – A Hot Standby license permits a copy of a Program to be loaded onto
one or more Machines in a cluster environment where monitoring for a failure of
the production copy of the Program occurs automatically and continuously and
failover to the Hot Standby Program is automatic. A Hot Standby Program may not
be accessed or Used in production at the same time as the primary production
copy. The Hot Standby Program must be
licensed for the same number of Servers, Seats, Concurrent Users, Connections,
or CPUs, as applicable, as the production copy. Programs for which a Hot Standby License is available will be specified
in the then current Price List.
“Internet
Access License” or “IAL” – a limited right to
permit access to a licensed Program by a number of “External Internet Seats”
which shall be limited only by the capacity of the Machine, provided Customer
has paid the applicable CPU fees for each processor on such Machine. "External Internet Seats" shall
mean Seats which access the specified Program via the Internet; provided that
the person at such Seat is not acting in the capacity of an employee, agent or
independent contractor of Customer.
External Internet Seats may query the Program database and update such
database to the extent allowed by Customer's application, but may not use the
Program to develop or modify applications or perform other programming tasks.
Customer may not Use the specified Program in connection with a website hosted
by Customer on behalf of third parties.
An Internet Access License does not cover intranet usage or other
internal usage and Customer must acquire the necessary Seat licenses for all
internal usage of the Program. If Customer purchases (or renews) Support for
a Program for which an Internet Access License has been obtained, Customer
shall purchase the same level of Support for the Internet Access License as for
such Program.
"Machine" – A single computer hardware system identified on
the applicable Order running a single copy of the Operating System Software.
“Mainframe Base” or “MB” – The basic license fee applicable for certain
mainframe Programs based upon the mainframe Machine model set forth in the
applicable Order. For each copy of a
Program designated as license type MB, Customer shall also pay the applicable
MSU License fee based upon the then current MSU rating of the mainframe
Machine. See also “MSU (Millions of
Service Units) License”.
"Major Release" - A major Update release of the Programs
containing new features and functions as well as error corrections.
“MSU (Millions of Service Units) License” or “MU”
– The license fee payable by Customer
for each copy of the Program shall be determined by multiplying the number of
MSUs for the Machine by the applicable rate and adding the applicable Mainframe
Base rate thereto, all as specified in the applicable Order. In the event that
the number of MSUs for the Machine is increased, Customer shall report such
increase, execute a new Order, and pay an additional amount determined by
multiplying the incremental number of MSUs by the then applicable MSU rate for
the Program and adding any incremental base rate fee thereto, all as set forth
in the Price List. The number of users
shall be limited only by the capacity of the licensed MSUs, and may include
internal users within the Customer’s organization, and external users outside
of the Customers organization accessing the Program via the Internet (“Internet
Users”). Internet Users may not Use the
Program to develop or modify applications or perform other programming tasks,
and may only Use the Program in conjunction with Customer’s applications.
"Operating System Software" - The operating system software listed in the
Order applicable to the relevant copy of the Program.
“Order” – a Purchase Order or Sybase “Exhibit A” signed by
Customer and accepted by Sybase.
“OT” - denotes “other”, for products or services
included on an Order which are not otherwise defined.
“Networked License” – The limited right to access any licensed server
in the network from any licensed Seat.
“Platform License” or
“PL” – The limited right to
install the Program on any server at the single physical location (or approved
hosting site) specified for such license in the applicable Order.
"Price List" - Sybase’s then current price list for the country
in which the Program is to be installed.
"Primary
Copy" - a licensed copy of the
Program provided by Sybase, including a copy provided initially as a trial
copy.
"Program" - the object code version of the software
product(s) listed in the Order, as well as any and all Updates and authorized
copies. Although the Program media may
contain other software products, Customer is licensed to install and Use only
the designated Program.
"Purchase
Order" - a purchase order or other
purchase authorizing document issued by Customer for Sybase products and/or
services and accepted by Sybase, as confirmed by a Sybase invoice.
“Quantity of Licenses” – the number of copies, Servers, Seats, Concurrent
Users, Connections or CPUs, as applicable, licensed for a particular Program
pursuant to an Order.
“S” in the column
entitled “Platform/OS” of an “Exhibit A” -
denotes a Program edition licensed for installation on high end, high capacity
Machines and/or Machines which are scalable over multiple processors, operating
in a UNIX environment with more than 8 processors
"Seat", or
“ST” - a specific identifiable
unique accessor of information such as (but not limited to) a terminal,
personal computer, single user workstation, personal digital assistant (“PDA”),
wireless or real time device.
"Secondary
Copy" - a licensed copy of the
Program reproduced by Customer from the Primary Copy.
“Server” or “SR” – a computer containing software which permits it
to await and fulfill services to other computers.
“Standalone Seat” or
“SS” – The limited right to
install the Program on a single workstation Machine (and not a server Machine)
for access solely by the single workstation Machine upon which it resides.
“Standby Concurrent
User”, or “SC” – Permits installation of a
back up copy of a Program licensed under a Concurrent User License.
“Standby Connection”
or “NS” – Permits installation of a back up copy of a
Program licensed under a Connection License.
“Standby CPU” or “SF” – Permits installation of a back up copy of a
Program licensed under a CPU License, either “CP” or “IC”. See “CPU License” and “Incremental CPU”.
“Standby Seat” or “SE” – Permits installation of a back up copy of a
Program licensed under a Networked License.
“Standby Server” or
“SV” - Permits a copy of a Program
to be installed as a back up in the event of an interruption in the operation
of a production copy of the same Program.
See further, “”Cold Standby”,
“Warm Standby” and “Hot Standby”.
“Support” - The technical Support plan selected by
Customer.
“Transactions” means the number of inbound messages plus the
number of outbound messages processed.
"Updates" means error corrections, maintenance releases and
Major Releases of the Program made available to Sybase customers under certain
Sybase Support plans.
“Upgrade” means (i) transfer of the Program to a Machine of
a higher Sybase Machine Class, i.e. transfer to a Machine that provides greater
processing capacity, or (ii) Customer migration from one edition of a Program
to another edition with increased functionality, e.g. from Advanced Edition to
Enterprise Edition.
"Use" - to load, view, print, update, access, utilize,
or store the Program or any information on the Program.
“W” in the column
entitled “Platform/OS” of an “Exhibit A” -
denotes “Workplace” and indicates a Program edition licensed for
installation on low end Machines operating in a UNIX environment which have a
maximum Machine processing capacity (determined by multiplying the maximum
number of CPUs by the maximum MHz of each CPU capable of being installed on the
server per the manufacturer, regardless of the actual number of CPUs installed
or the actual MHz of the installed CPUs) which is equal to or less than 2000,
and Machines operating in a Windows or Linux environment.
“Warm Standby” - A Warm Standby Program shall be limited to the Machine running the
operating system shown on the Order, at a site shown on the Order. A Warm Standby Program is an operating copy
of a Program deployed on a separate Machine as a backup to process data that is
automatically and continuously being replicated from Customer’s primary
production Machine. A Warm Standby
Program may not be accessed or Used in production at the same time as the
primary production copy. In the event of a failure of the production copy or
production Machine, the Warm Standby Program may be Used to access such
replicated data. The Warm Standby
Program must be licensed for the same number of Servers, Seats, Concurrent
Users, Connections or CPUs, as applicable, as the production copy. Programs for which a Warm Standby License is
available will be specified in the then current Price List.