Micro Focus End User License Agreement

IMPORTANT: MICRO FOCUS IS PROVIDING THIS SOFTWARE FOR YOUR USE SUBJECT TO YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT BY CLICKING ON SETUP'S ACCEPT BUTTON, YOU WILL NOT BE ABLE TO USE THE SOFTWARE. BY CLICKING SETUP'S ACCEPT BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

WHEREAS, Micro Focus desires to grant to Licensee, and Licensee desires to accept from Micro Focus, a license to use Micro Focus Software (as defined herein) upon the terms and conditions hereinafter set forth; NOW, THEREFORE, Micro Focus and Licensee agree as follows:

For this Micro Focus End User License Agreement ("License Agreement") the following terms shall have the meanings given below:

"Micro Focus Software" means the object code version of the Micro Focus computer programs, their accompanying user documentation (“Documentation”) and other supplemental materials as provided to Licensee by Micro Focus, including but not limited to any software security keys, modifications or additions relating thereto. The “Micro Focus Software” shall also include any new releases, updates, revisions, modifications, additions, corrections and fixes that Licensee receives under Sections 6 and 7 below and under maintenance for which Licensee has separately contracted. From commencement of this License Agreement, the “Micro Focus Software” shall also include, and this License Agreement shall apply to, any prior versions of the Micro Focus Software licensed by Licensee. This License Agreement does not grant Licensee the right to any new releases, updates, revisions, modifications, additions, corrections and fixes of the Micro Focus Software unless provided by Micro Focus under Section 6 below.

"Product Order" means a document that has been (i) executed by Licensee, describing each Micro Focus Software purchased and (ii) accepted by Micro Focus or its authorized distributors. Micro Focus will accept the Product Order by either confirming Micro Focus' acceptance in writing or by delivering the Software to Licensee, whichever occurs first. Each Product Order shall constitute a separate agreement and shall incorporate therein all of the terms and conditions of this License Agreement. In the event of any conflict between the terms of this License Agreement and the terms of any Product Order which have been expressly accepted by a duly authorized signatory of Micro Focus in writing, such terms of the Product Order shall govern. In no event shall any terms and conditions of Licensee contained in a purchase order or similar document issued by Licensee in connection with this License Agreement or a Product Order apply and any such document issued shall be only for the administrative purposes of identifying the Micro Focus Software ordered, the number of licenses, and the price to be paid and shall have no other legal effect.

"Blades" means multiple server modules housed in a single chassis each with its own CPU, hard disk and memory. "Core" means a single unit of processing within a computer chip, comprising an arithmetic logic unit, registers, instruction fetcher and data fetcher/storer. "CPU" (Central Processor Unit) means a data processing unit, normally identified with a single microchip mounted on a single circuit board and can comprise several Cores. A computer “box” can contain several CPUs. The “box” is sometimes referred to as a “server” or a “machine” (or possibly a “mainframe"). "Software Virtualization" means the process by which the contents of the memory of a computer/server/ machine are copied to disc while not in use and then re-instated on the same (or different) hardware so that processing can continue. "Disaster Recovery System" is defined as a computer system that is used (i) if a disaster arises and the original production system is unavailable, (ii) for the purposes of disaster recovery testing and/or (iii) for system diagnostics or maintenance of the Disaster Recovery System itself. A Disaster Recovery System does not include any system that is in the same computer cluster as the machine on which the development or production copy of the Micro Focus Software is installed.

  1. GRANT OF LICENSE. For payment of the applicable non-refundable license fees identified on the Product Order, Micro Focus grants solely to Licensee, as an end user, a perpetual, non-transferable, non-sublicensable and non exclusive license to use the Micro Focus Software subject to the terms and conditions set forth in this License Agreement. Licensee shall have the right to use the Micro Focus Software solely for its own internal use and benefit. For the avoidance of doubt, the license granted herein does not permit (i) third party contractors (including without limitation outsourcers) to access or use the Micro Focus Software for Licensee’s internal use and benefit without the prior written consent of Micro Focus and the payment of an additional license fee, (ii) the public to access or use the Micro Focus Software (including without limitation, via the internet) except as specifically provided in Section 1.2(b) below, and/or (iii) use or access of a Software Virtualization image of the Micro Focus Software. Where permitted by Micro Focus pursuant to this Agreement, Licensee shall be liable to Micro Focus in respect of any breach of this License Agreement resulting from any access or use by third party contractors and/or the public. Access and/or use of data, results and/or output obtained and/or generated, either directly or indirectly, through the use of any Micro Focus Software is deemed to be access and/or use of such Micro Focus Software and such data, results and/or output shall be subject to the licensing terms and restrictions applicable to such Micro Focus software. Different license options are available from Micro Focus as set forth or referred to in this Section 1 (“License Option(s)”), although not all License Options are available for each specific Micro Focus Software product. The applicable License Option to be purchased by Licensee for the Micro Focus Software shall be identified in the Product Order. Additional Development and/or Deployment Product License Options (as appropriate) are required to be purchased by Licensee for use of the Micro Focus Software on a Disaster Recovery System or for load-balancing, fail-over, training, or testing purposes. Micro Focus Software purchased for testing purposes will be subject to the License Option terms and restrictions set forth in Section 1.4 below. The use, reproduction and/or distribution of a software application program created using any Micro Focus Software, in whole or in part, requires the purchase of a Deployment Product License from Micro Focus.
    1. Development Product License Options:
      1. Named User License. Micro Focus Software provided under this License Option gives Licensee the right to install the Micro Focus Software on either (i) a single machine which may be accessed by the named end users for those licenses or (ii) on a single host machine or server ("Host Server") which may be accessed by any of the named end users licensed. A Named User License means that only one named person can use each license and that named person has the right to unlimited access to the Micro Focus Software. A Named User License is not based on concurrent users, but instead on an actual named user basis. Micro Focus reserves the right at any time to require Licensee to provide a list of the named end users. Licensee may change a named end user provided that the change is made either permanently away from the named end user or temporarily to accommodate the use of the Micro Focus Software by a temporary worker while the named end user is absent, but in no event more than once every 30 days.
      2. Lines of Code License. Micro Focus Software provided under the Lines of Code license option requires, as a condition of use, that Licensee use a usage counter containing a credit for the number of lines of code that Licensee has purchased ("Usage Counter"). Licensee shall have sole responsibility for installing, configuring, and administering the Usage Counter. The Usage Counter will allow Licensee to create metering control files in order to track the number of lines of code which Licensee has purchased and which Licensee accesses. Licensee hereby acknowledges and agrees that unless Licensee can demonstrate to Micro Focus' satisfaction that the Usage Counter was faulty on delivery to Licensee, Licensee is solely responsible for any lost, damaged, corrupted, destroyed, inaccurate or improperly used metering control files or metering transaction files, and in any such circumstance, may be required to pay an additional license fee on a line of code basis for lines of code which may have been already accessed and recorded using the Usage Counter. Each line of code which Licensee has accessed using the Micro Focus Software and which has been properly recorded using the Usage Counter may be re-accessed without the need to pay an additional license fee. However, if Licensee creates an additional line of code by updating a line of code source member which has already been accessed and metered by the Micro Focus Software, then Licensee will need to pay an additional license fee to access such additional line of code using the Micro Focus Software. Upon exhaustion of prepaid license fees, however, Licensee must purchase more lines of code in order to continue to use the Micro Focus Software on lines of code not yet accessed by the Micro Focus Software and properly recorded using the Usage Counter. Any prepaid license fees are non-cancellable and non-refundable.
      3. Volume of Data License. Micro Focus Software provided under this option gives Licensee the right to utilize the Micro Focus Software with the volume of data (the number of terabytes) identified in the Product Order for each of the applicable modules or extensions licensed with the Micro Focus Software. Volume of data is measured as the original volume of Licensee’s production data to be processed utilizing the Micro Focus Software before any data reduction process by the Micro Focus Software or otherwise has been applied. The same data source (defined as a database table or a file) and data may be processed multiple times without counting it more than once towards the total volume of data processed by the Micro Focus Software, however any additional data and/or data sources (that is, new or increased amounts to the original data source) are counted cumulatively towards such total volume of data number.
    2. Deployment Product License Options:

      Deployment products are licensed either on a per-user basis (the User License) or on a per-server basis (the Server License) as defined below.

      1. User License for Authorized Users. Micro Focus Software under this License Option gives Licensee the right to install the Micro Focus Software on unlimited Host Servers for use by the total number of named individuals for whom Licensee has paid the applicable User License fee. The Micro Focus Software may not be used or accessed by (a) individuals who are not named individuals; or (b) any other software or hardware device that does not require a named individual to use or access it. A named individual means an individual identified by Licensee by name who is authorized to use any device or other software program that may access the Micro Focus Software, either directly or indirectly through any other software program, regardless of how such access occurs or if such individual uses any hardware or software that reduces the apparent number of users who are using the Micro Focus Software, such as by using a terminal service. The Micro Focus Software may not be used or accessed by any other software or hardware device that does not require an individual to use or access it including, without limitation, batch processing (as defined in subsection 1.2(b)(ii) below). Micro Focus reserves the right at any time to require Licensee to provide a list of the named individual(s). Licensee may change a named individual provided that the change is made either permanently away from the named individual or temporarily to accommodate the use of the Micro Focus Software by a temporary worker while the named individual is absent.
      2. Server License. There are two options for server-based licenses.

        (i) Server License for Concurrent Users. Micro Focus Software under this License Option gives Licensee the right to install the Micro Focus Software on the designated Host Server specified in the Product Order for use by the maximum number of Concurrent Users for whom Licensee has paid the applicable Server License fee. Concurrent Users are individuals who are actively using any device or other software program that may access the Micro Focus Software either directly, or indirectly through any other software program, regardless of how such access occurs or if such user uses any hardware or software that reduces the apparent number of users who are using the Micro Focus Software, such as by using a terminal service. The Micro Focus Software may not be used or accessed by any other software or hardware device that does not require an individual to use or access it including, without limitation, batch processing (as defined in subsection 1.2(b)(ii) below). Licensee may change the designated Host Server to an equivalent Host Server for which Licensee has paid the applicable Server License fee. Licensee may only use the Micro Focus Software on or access the Micro Focus Software from one Host Server at any one time. Subject to the prior written consent of Micro Focus and to payment of additional license fees, Licensee may permit the public and/or Licensee’s customers to access and use the Micro Focus Software via the internet and/or Licensee’s terminals in connection with Licensee’s internal business purposes (for example to access internet banking from Licensee) but not for the public’s and/or Licensee’s customers’ own internal use.

        (ii) Server License for CPUs. Micro Focus Software provided under this License Option gives Licensee the right to install the Micro Focus Software on up to the total number of Cores and other processing devices within each CPU on the designated single Host Server specified in the Product Order. The Host Server comprises the entire computer system (i.e. combined hardware) that will be running the Micro Focus Software (e.g. all CPUs, Cores, Blades and other processing devices running an operating system compatible with that which the licensed Micro Focus Software is designed for and which are contained in, and/or can be accessed by, the same computer system, even if one or more of such CPUs, Cores, Blades or other processing devices are not accessing or running the Micro Focus Software). Each Core or other processing device on a multi-core or multi-processing device requires its own CPU license. For example a dual core single CPU Host Server will require a 2 CPU license (in the absence of any Blades or other processing devices). The Micro Focus Software is provided for use by an unlimited number of Licensee's internal users, other software devices and hardware devices. A Server License for CPU is the only license authorized for use or access by Licensee for any batch processing. Batch processing is defined as the execution of more than one task, transaction or program by a computer system without the interaction of the end user with the Micro Focus Software while such tasks, transactions or programs are being executed by the system. Batch processing includes situations where a queue of jobs is processed as resources become available and is in contrast to transaction or interactive processing. Micro Focus reserves the right at any time to require Licensee to provide a specification of the Host Server. Licensee may change the designated Host Server provided that the total number of CPU and Core licenses required in the new Host Server does not exceed the total number of CPU and Core licenses designated in the Product Order. Licensee may only use or access the Micro Focus Software from one Host Server at any one time. Licensee is required to purchase a license for each Host Server that accesses or uses the Micro Focus Software either directly or indirectly through any other software program, regardless of how such access occurs, or if the Host Server, CPU or operator uses any hardware or software that reduces the apparent number of CPU, Cores, blades or other processing devices that are using the Micro Focus Software, such as by using a terminal service. Subject to the prior written consent of Micro Focus and to payment of additional license fees, Licensee may permit the public and/or Licensee's customers to access and use the Micro Focus Software via the internet and/or Licensee's terminals in connection with Licensee's internal business purposes (for example to access internet banking from Licensee) but not for the public's and/or Licensee's customers' own internal use.

      3. Evaluation License Option.

        Micro Focus Software provided under this License Option gives Licensee a term license to use the Micro Focus Software within Licensee's organization during the evaluation term specified in writing by Micro Focus, solely for evaluation and testing purposes on a single computer system and not for development, commercial, or production purposes. Licensee may not reproduce or distribute the Micro Focus Software. Licensee's results of benchmark or other performance tests run on or using the Micro Focus Software may not be disclosed to any third party without Micro Focus' prior written consent. At any time during the evaluation term or upon completion thereof, Licensee may, upon written notification to Micro Focus and payment of the applicable license fee, replace the evaluation license with a license to use the Micro Focus Software pursuant to one of the options listed in Sections 1.1 or 1.2. In the absence of such notification by Licensee, the evaluation license shall automatically terminate at the end of the evaluation term and Licensee shall return, or, if Micro Focus so directs, delete and destroy all such Micro Focus Software and provide Micro Focus with written confirmation of such deletion and destruction being completed. Micro Focus may, in its sole discretion, grant Licensee an extension to the evaluation term subject to receiving a written request and reasons for such request from Licensee prior to expiration of the evaluation term. Micro Focus will specify any such agreed extension in writing to Licensee. Micro Focus Software provided by Micro Focus free of license fee charge shall be deemed to be provided pursuant to this Evaluation License Option unless otherwise agreed in writing. In the absence of any contrary period specified in writing by Micro Focus, the evaluation term shall be deemed to be thirty (30) days. In relation to Micro Focus Software provided pursuant to this Evaluation License Option, this Section 1.3 shall prevail over any contrary provisions set forth in this License Agreement.

      4. Test License Option.

        Micro Focus Software provided under this License Option gives Licensee a limited license to use the Micro Focus Software solely for Licensee's internal testing purposes on a single computer system. At no time may Licensee use the Micro Focus Software for development, commercial, or production purposes, nor may Licensee reproduce or distribute the Micro Focus Software or any software application programs created with it. The applicable license fee for this License Option will be determined by the access or use to be tested. For example, batch process testing will require the payment of the applicable license fee for a Micro Focus server license for CPU. Licensee’s results of benchmark or other performance tests run on or using the Micro Focus Software may not be disclosed to any third party without Micro Focus’ prior written consent. If Licensee uses the Test Licenses for any purpose other than for Licensee's internal testing purposes, the Test License shall terminate automatically and without notice. Upon such termination, Licensee may convert the terminated Test License to a standard license type listed above by paying the applicable conversion fee. In relation to Micro Focus Software provided pursuant to this Test License Option, this Section 1.4 shall prevail over any contrary provisions set forth in this License Agreement.

      Certain Micro Focus Software may also be subject to additional terms and conditions as set forth in the "Specific Software Terms" located at the end of this License Agreement. The Specific Software Terms will prevail in the event of any conflict.

  2. USER RESTRICTION. Licensee agrees not to:
    1. Copy and distribute the Micro Focus Software, in whole or in part, for internal use without paying Micro Focus the applicable additional fees, except (i) for making a reasonable number of archival back-up copies; or (ii) as expressly authorized by Micro Focus in writing; or (iii) for making a reasonable number of copies of the Documentation supplied to Licensee by Micro Focus in electronic form. Licensee shall reproduce and affix all copyright and other proprietary rights notices appearing in or on the Micro Focus Software, including the notices of all third party suppliers and all those included in any Third Party Software, as defined below in all such copies thereof.
    2. Copy and/or distribute the Software, in whole or in part, to third parties without first entering into a separate distribution license agreement with Micro Focus or permit use or access to all or part of the Micro Focus Software to any third party except as specifically provided in Sections 1(i) and (ii) above. For the avoidance of doubt, third party(ies) include without limitation contractors, outsourcers, Licensee's customers and the public.
    3. Transfer, ship or use the Micro Focus Software outside the continent in which it was originally licensed to Licensee.
    4. Install, access or use the Micro Focus Software on an operating system other than the operating system for which the Micro Focus Software was originally licensed to Licensee.
    5. Assign, sell, rent, lease, lend, sublicense, outsource or otherwise transfer the Micro Focus Software to any third party, or authorize or appoint any third party to do so.
    6. Use the Micro Focus Software for timesharing, hosting, service bureau or like purposes.
    7. Modify the Micro Focus Software or provide any person with the means to do the same.
    8. Create derivative works, translate, disassemble, recompile or reverse engineer any Micro Focus Software or attempt to do so (except to the extent applicable law specifically permits such activity).
    9. Alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within the Micro Focus Software or Documentation.
    10. Utilize for itself, or permit any third party to utilize, any software application program created, in whole or in part, utilizing any Micro Focus Software without a valid and properly granted Deployment Product License.
    11. Use the Micro Focus Software in a manner other than as specifically permitted in this License Agreement.
  3. AUDITS. Licensee agrees to (i) keep records of and provide the location, model and serial number of any and all machines on which the Micro Focus Software is installed or from which the Micro Focus Software is accessed, and the names of and how many users are accessing the Micro Focus Software, (ii) implement a reasonable mechanism or process to ensure that Licensee's use of the Micro Focus Software does not exceed the number of licenses granted, (iii) take all necessary steps to destroy or erase all Micro Focus Software codes, programs and other proprietary information before disposing of any media containing the Micro Focus Software, and (iv) promptly provide written notice to Micro Focus if Licensee's usage exceeds the license granted. Upon Micro Focus' reasonable request, but not more frequently than annually without reasonable cause, Licensee shall furnish Micro Focus with a statement signed by a director and/or auditor, as required by Micro Focus, verifying the above and shall permit Micro Focus to audit the use of the Micro Focus Software at such times as may be mutually agreed upon. In the event Licensee's usage exceeds the license granted, without prejudice to any other rights or remedies Micro Focus may have, including without limitation injunctive relief, Licensee agrees to pay Micro Focus the then current license and maintenance fees for the use of the additional licenses. Further, if such usage exceeds the license granted by more than five percent (5%), Licensee shall also reimburse Micro Focus for the reasonable cost of such audit in addition to other amounts due.
  4. DOCUMENTATION. One (1) electronic copy of Micro Focus' standard Documentation, describing Micro Focus' recommended use and application of the Micro Focus Software, will be furnished free of additional charge to Licensee by Micro Focus with the Micro Focus Software. Printed copies of any documentation may be available for purchase from Micro Focus or its authorized distributors.
  5. TERM OF LICENSE. This License Agreement and Licensee’s license for the Micro Focus Software is perpetual subject to earlier termination as provided in this Section 5. Micro Focus may terminate this License Agreement and Licensee’s license to the Micro Focus Software immediately by giving Licensee written notice of termination in the event that either (i) Licensee breaches any term or condition of this License Agreement and Licensee has failed to remedy such breach within ten (10) days of the date of notice from Micro Focus to Licensee or (ii) Licensee is wound up, has a receiver appointed or enters into liquidation or bankruptcy or analogous process or processes. Termination shall be without prejudice to any other rights or remedies Micro Focus may have. Licensee may at any time terminate this License Agreement voluntarily by giving notice of termination to Micro Focus. In the event of any termination Licensee will have no right to keep or use the Micro Focus Software or any copy of the Micro Focus Software for any purpose and Licensee shall destroy and erase all copies of such Micro Focus Software in its possession or control, and forward written certification to Micro Focus that all such copies of Micro Focus Software have been destroyed or erased.
  6. MAINTENANCE. Where Licensee purchases maintenance services, Licensee’s initial maintenance term will begin upon delivery to Licensee of the Micro Focus Software and continue for one (1) year thereafter unless otherwise specified in the applicable annual maintenance agreement or in the Product Order, or earlier if the license is terminated. Where Licensee purchases maintenance for any Micro Focus Software product licensed hereunder, Licensee hereby agrees that it shall purchase such maintenance services for all of Licensee’s licensed copies of such Micro Focus Software product. Maintenance services provided by Micro Focus will be subject to Micro Focus’ then current applicable annual maintenance agreement unless otherwise agreed.
  7. LIMITED WARRANTY. Micro Focus warrants for a period of ninety (90) days from delivery to Licensee ("Warranty Period") (i) that the media on which the Micro Focus Software is supplied is free from defects in materials or workmanship under normal use and (ii) that the copy of the Micro Focus Software delivered to Licensee conforms in all material respects to the Documentation. As the sole and exclusive remedy for not meeting part (i) of the above warranty, Micro Focus' sole obligation shall be to repair or replace free of charge any defective media on which the Micro Focus Software is delivered if the media is returned to Micro Focus by Licensee during the Warranty Period. As the sole and exclusive remedy for not meeting part (ii) of the above warranty, Micro Focus shall repair or replace the Micro Focus Software free of charge or if Micro Focus reasonably determines that such remedy is not economically or technically feasible, Licensee shall be entitled to a full refund of the license fee and any maintenance fee paid by Licensee with respect to that particular Micro Focus Software and Licensee's license to use such Micro Focus Software will terminate. The warranty set forth in this Section 7 shall not apply if the defect in the Micro Focus Software is the result of: (a) the Micro Focus Software not being used in accordance with the Documentation, this License Agreement or with the platform(s) for which the Micro Focus Software has been designed and licensed by Micro Focus; or (b) the Micro Focus Software having been altered, modified or converted by Licensee or any third party except as may be specified in the Documentation; or (c) the malfunctioning of Licensee's equipment; or (d) accident or abuse; or (e) service by any unauthorized person; or (f) other software used by Licensee which has not been provided by Micro Focus or for which the Micro Focus Software is not designed and licensed for operation; or (g) Third Party Software, as defined below; or (h) any other cause occurring after initial delivery of the media to Licensee unless caused directly by Micro Focus. The foregoing states the complete and entire remedies that Licensee has under this warranty. Micro Focus shall have no responsibility for any warranty claims made outside of the Warranty Period.
  8. DISCLAIMER OF WARRANTY. The Micro Focus Software cannot be tested in every possible operating environment, therefore Micro Focus does not warrant that the functions contained in the Micro Focus Software will meet Licensee's requirements, that operation of the Micro Focus Software will be uninterrupted, or that the Micro Focus Software is error free. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED ON THE PART OF MICRO FOCUS AND ITS THIRD-PARTY SUPPLIERS. Licensee acknowledges that Licensee is responsible for the selection of the Micro Focus Software to achieve Licensee's intended results and for the installation of, use of and results obtained from the Micro Focus Software.
  9. LIMITATION OF LIABILITY. ANY LIABILITY OF MICRO FOCUS SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID BY LICENSEE FOR THE MICRO FOCUS SOFTWARE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THE LIMITATIONS OF LIABILITY DESCRIBED IN THIS SECTION 9 ALSO APPLY TO MICRO FOCUS' THIRD-PARTY SUPPLIERS. MICRO FOCUS' AND ITS THIRD-PARTY SUPPLIERS' LIMITATIONS OF LIABILITY ARE NOT CUMULATIVE. Licensee's remedies in this License Agreement are Licensee's exclusive remedies.

    NEITHER MICRO FOCUS NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE, WHETHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL NOR FOR ANY LOST PROFITS, CONTRACTS, LOSS OF DATA OR PROGRAMS, OR THE COST OF RECOVERING SUCH DATA OR PROGRAMS, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

    NEITHER THIS LICENSE AGREEMENT NOR ANYTHING IN THIS SECTION 9 SHALL PURPORT TO EXCLUDE OR RESTRICT THE LIABILITY OF MICRO FOCUS OR ITS THIRD-PARTY SUPPLIERS TO ANY EXTENT NOT PERMITTED BY LAW.

  10. HIGH-RISK USES. The Micro Focus Software is not fault tolerant, nor designed, manufactured or intended for use in hazardous environments requiring fail-safe performance (including, without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems) in which failure of the Micro Focus Software could lead directly or indirectly to death, personal injury or severe physical or environmental damage. Micro Focus and its suppliers specifically disclaim any express or implied warranty of fitness for a particular purpose and shall have no liability for any use of the Micro Focus Software in any high-risk situations.
  11. OWNERSHIP. Micro Focus and where applicable Micro Focus' third party suppliers have and will retain all ownership rights to the Micro Focus Software, together with any complete or partial copies thereof. Such ownership rights include without limitation all patent rights, copyrights, trademarks, trade secrets, service marks, related goodwill, and confidential and proprietary information relating thereto. This License Agreement does not convey any proprietary interest to Licensee with respect to the Micro Focus Software other than the license specified herein. Where the Micro Focus Software provided under this License Agreement contains or is derived from portions of materials provided by a third-party supplier under license to Micro Focus, Micro Focus has assumed responsibility for the selection of such materials and their use in producing the Micro Focus Software and any such third-party suppliers are intended beneficiaries of this License Agreement.
  12. NOTICE TO GOVERNMENT END USERS. The Micro Focus Software is provided to the United States Government with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to the restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or the successor as appropriate. Manufacturer is Micro Focus, 9420 Key West Drive, Rockville, MD 20850.
  13. LICENSE FEES, PAYMENT, AND TERMS. Licensee agrees to pay the applicable end user license fees for the Micro Focus Software within thirty (30) days of the date of invoice or such earlier date as is specified in the Product Order. End user license fees are non-refundable except as provided in Section 7 above, or in the Specific Software Terms below, and shall be paid without deduction, including without limitation, of any withholding tax. End user license fees are exclusive of any applicable transportation charges, value added and other applicable taxes and duties and all such amounts shall be paid or reimbursed by Licensee. Late payments shall accrue interest at the rate of 1.5% per month compounded or, if lower, the maximum rate allowed by law.
  14. RELATED SERVICES. Licensee shall be responsible for obtaining and installing all proper hardware and support software (including operating systems) and for proper installation and implementation of and training concerning the Micro Focus Software. In the event that Licensee retains Micro Focus to perform any services with respect to the Micro Focus Software (for example: installation, implementation, maintenance, consulting and/or training services), Licensee and Micro Focus agree that such services shall be subject to Micro Focus' then current standard terms, conditions and rates for such services unless otherwise agreed in writing by Micro Focus.
  15. THIRD PARTY SOFTWARE AND COMPONENTS. The Micro Focus Software may contain certain named third party software programs that Licensee shall license directly from the third party subject to such third party's terms and conditions (for example Adobe Acrobat or Microsoft Internet Explorer) ("Third Party Software"). All Third Party Software is provided by the licensor of the Third Party Software and solely under such third party's terms and conditions and not by Micro Focus. Therefore the obligations, duties and rights of Micro Focus and Licensee under this License Agreement do not apply to such Third Party Software. Additionally, Micro Focus has embedded certain run time or other elements provided by third party suppliers to Micro Focus ("Third Party Components"). Third Party Components are licensed to Licensee pursuant to this License Agreement. Licensee may only access Third Party Components of the Micro Focus Software in the course of using the Micro Focus Software. Licensee may not make or attempt any direct access to any such Third Party Components other than with the Micro Focus Software.
  16. PRIVACY. The Micro Focus Software may contain features which may allow Licensee to collect data from, control and/or monitor computers running the Micro Focus Software deployed by Licensee without notice to or knowledge by users of the Micro Focus Software. Licensee is solely responsible for, and assumes all liability with respect to, the collection of data with respect to its users of the Micro Focus Software including, without limitation, notifying such users and complying with all data collection, privacy and other regulations, laws, industry standards and rights of others applicable to any such activity. Licensee shall indemnify and hold Micro Focus harmless from and against any damages, claims, losses, settlements, attorneys' fees, legal fees and court costs and other expenses related to any such activities or any claims in connection therewith. To the extent permitted by law, by entering into this License Agreement, Licensee hereby expressly consents to (i) Micro Focus sending information to Licensee from time to time advertising the various products that Micro Focus provides, whether or not such products are provided under this License Agreement and (ii) the use of Licensee’s name in Micro Focus customer lists, promotional materials and/or press releases. Micro Focus sometimes collects information about the computer system on which the Micro Focus Software is installed (e.g. product version, serial number) for our internal statistical, administrative and licensing purposes. Micro Focus does not use this information to identify individuals utilizing such software.
  17. MISCELLANEOUS. Micro Focus shall be defined as the Micro Focus legal entity authorized to license the Micro Focus Software in the country in which Licensee acquires the Micro Focus Software. Micro Focus may assign this License Agreement to any member of the Micro Focus group of companies or to a purchaser of the intellectual property rights in the Micro Focus Software, but otherwise neither this License Agreement nor any rights hereunder may be assigned (any change of control, merger, sale or other transfer of all, or substantially all, of the assets of Licensee shall be included in the meaning of an assignment) nor duties delegated by either party, and any attempt to do so will be void. If Licensee acquires the Micro Focus Software in North America, the laws of the state of Maryland govern this License Agreement and it shall be subject to the exclusive jurisdiction of the courts of the State of Maryland. If Licensee acquires the Micro Focus Software in France, Germany or Japan, this License Agreement is governed by the laws of the country in which Licensee acquired the Micro Focus Software. In the rest of the world the laws of England govern this License Agreement. The aforesaid applicable law shall apply without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Other than for North American transactions, this License Agreement shall be subject to the exclusive jurisdiction of the courts of the country determining the applicable law as aforesaid. This License Agreement is in addition expressly made subject to any United States, United Kingdom or European Union laws, regulations and other restrictions regarding export or re-export of computer software and technology. Licensee agrees not to export or re-export any Micro Focus Software or derivative thereof in contradiction to any such applicable restriction. Except for the Product Order, this License Agreement is the complete and exclusive statement of agreement between the parties relating to the license for the Micro Focus Software and supersedes all proposals, communications, purchase orders, and prior agreements, verbal or written, including prior end user license agreements, between the parties. Upon Licensee’s properly authorized installation of any update and/or upgrade of any Micro Focus Software licensed hereunder, the license granted to such prior version and/or release shall terminate after a ninety (90) day transition period from such installation and only the license to such updated and/or upgraded Micro Focus Software shall continue. No employee, agent, or representative of Micro Focus has the authority to bind Micro Focus to any oral representation or warranty concerning the Micro Focus Software. No representation or statement not expressly contained in this License Agreement nor any supplement, modification, or amendment of this License Agreement will be binding on either party unless executed in writing by a duly authorized representative of each party to this License Agreement.

SPECIFIC SOFTWARE TERMS

The following terms and conditions apply to the applicable Micro Focus Software products named below and supersede any conflicting terms and conditions set forth elsewhere in this License Agreement:

MICRO FOCUS SERVER, APPLICATION SERVER FOR OBJECT COBOL DEVELOPER SUITE, APPLICATION SERVER FOR NET EXPRESS, APPLICATION SERVER FOR SERVER EXPRESS, AND ENTERPRISE SERVER. Where Micro Focus Server, Application Server, or Enterprise Server (including all Enterprise Server Options) is the Micro Focus Software , Licensee has the option to use the Micro Focus Software licenses purchased either (i) for internal development purposes as provided in Section 1.1 above, or (ii) to reproduce and distribute internally, as provided in Section 1.2 above, any software application program created by Licensee using any such Micro Focus Software product, in whole or in part, as a part of Licensee’s own application software product (“Licensee Application Software”). Where the foregoing option (ii) is selected it is contingent upon Licensee (a) including Micro Focus’ copyright notice for the Micro Focus Software on the product label and as a part of the sign-on message for such Licensee Application Software product; and (b) indemnifying, holding harmless and defending Micro Focus and its third-party suppliers from and against any claims or lawsuits, including attorneys’ fees, legal fees and court costs that arise out of, or result from, the use or distribution of such Licensee Application Software. Licensee can only reproduce and distribute Licensee Application Software to third parties after entering into a separate distribution agreement with Micro Focus. Usage and distribution of the Micro Focus Software arises both by the explicit distribution of any Licensee Application Software and by the implicit distribution and usage of any such functionality when linked into a software application program. The grant of license for the Micro Focus Software does not permit Licensee to either use or reproduce and distribute any files supplied as part of the Micro Focus Software in order to create a compiler, interpreter or runtime support product. Micro Focus offers specific production licensing options for distribution to third parties which vary depending upon the license fees paid by Licensee and Licensee should contact its Micro Focus sales representative for more details.

MAINFRAME EXPRESS ENTERPRISE EDITION.

  1. Where Mainframe Express Enterprise Edition (all versions and editions including earlier versions such as Mainframe Express) is the Micro Focus Software, Mainframe Express Enterprise Edition may only be used for development purposes. Licensee may not use Mainframe Express Enterprise Edition for production purposes nor utilize or access any of the Mainframe Access portions of the Micro Focus Software from any Micro Focus Software product licensed separately, unless the Micro Focus product, Mainframe Access, has also been separately licensed from Micro Focus, in which case, the Mainframe Access product included as part of Mainframe Express Enterprise Edition may be installed on the number of host (mainframe) machines needed to support the number of authorized end-users of Mainframe Express Enterprise Edition.
  2. Where Mainframe Express Enterprise Edition is the Micro Focus Software, the Micro Focus Software will contain Component Generator. In order to use the components created using Component Generator, Licensee must pay a license fee. Upon payment of such license fee, Micro Focus grants Licensee a personal, non-exclusive, non-transferable license to use the components according to the type of license granted. Micro Focus has and will retain all ownership rights to any application source code generated by a template, wizard or similar functionality, (“Generated Source Code”) supplied as part of the Component Generator including without limitation all patent rights, copyrights, trademarks, trade secrets, service marks, related goodwill, and confidential and proprietary information relating thereto. For the avoidance of doubt, Generated Source Code does not include Application Server Files. Licensee shall have and retain all ownership rights to Licensee’s implementation of the Generated Source Code, provided that nothing in this Section shall be construed as in any way granting Licensee any right to limit or prevent: (i) Micro Focus from licensing any of its existing or future Micro Focus Software or providing any of its existing or future services to third parties; or (ii) Micro Focus or any other users of the Component Generator from generating and using identical or similar implementations of Generated Source Code. Micro Focus grants Licensee a perpetual, transferable, non-exclusive, royalty-free right to reproduce and distribute the Generated Source Code in object code form together with any implementation Licensee make thereto as a part of Licensee’s application of the Micro Focus Software product created using the Component Generator and that such Licensee application of the Micro Focus Software product adds significant and primary functionality to the Generated Source Code.

MICRO FOCUS STUDIO, NET EXPRESS AND NET EXPRESS WITH .NET. Where Micro Focus Studio, Net Express or Net Express with .NET (all versions) is the Micro Focus Software:

  1. Redistribution of Internet Shortcut Support DLL (URL.DLL) in Microsoft Win32 SDK. To obtain rights to distribute file "URL.DLL" supplied as part of the Microsoft Win32 SDK that may be included with the Micro Focus Software, Licensee must print out, sign and return the Microsoft Win32 SDK End User Licensee Software License Agreement (located at \license\win32sdk.txt in the Microsoft Win32 SDK) to Microsoft Corporation, Win32 SDK Program, Building 5-2, One Microsoft Way, Redmond, Washington 98052-6399. URL.DLL may be included as part of a future version of Windows or Windows NT. Upon notification by Microsoft of its inclusion of URL.DLL in Windows or Windows NT, Licensee shall upgrade its application so that it no longer contains URL.DLL, and within a reasonable period after such time, but no later than six (6) months, cease distribution of URL.DLL.
  2. Use of Microsoft Visual Studio Technology and Visual Studio .NET Premier Partner Edition, including VSIP-SDK ("VSN Software"). The VSN Software is provided by and governed under the VSN Software End User License Agreement (“VSN EULA”) enclosed with the Micro Focus Software. Licensee must agree to be bound by the VSN EULA before use of the VSN Software. If Licensee does not agree to be bound by the VSN EULA then Licensee may return the Micro Focus Software to Micro Focus within ten (10) days of purchase, and may receive a full refund of the license fee received by Micro Focus from Licensee for such Micro Focus Software and Licensee’s right to use the Micro Focus Software shall end. Licensee shall not use or enable others to use the information/content of the VSIP-SDK to enable any development environment other than Visual Studio .NET to host packages that use the interfaces documented in the VSIP-SDK or use or enable others to develop or distribute extensions to or wrappers for the VSN Software, or the interfaces between the Micro Focus Software and the VSN Software.

ACADEMIC EDITIONS/USERS. Where Net Express, Mainframe Express Enterprise Edition, Net Express Personal Edition and/or Server Express is the Micro Focus Software, licensed under Micro Focus' ACTION Program, in addition to the above terms and conditions:

  1. Licensee shall not use the Micro Focus Software for any purpose other than for education, training or academic research activities.
  2. Licensee shall not copy the Micro Focus Software, nor shall Licensee distribute, transfer or assign the Micro Focus Software without specific permission from Micro Focus.
  3. License management: If Licensee is the academic institution using the Micro Focus Software for teaching purposes, Licensee will manage all student licenses through a license server provided by Micro Focus in accordance with guidelines provided by Micro Focus. Licensee agrees to provide reports describing the number of licenses Licensee has issued in each period upon Micro Focus' request.

NET EXPRESS PERSONAL EDITION. Where Net Express Personal Edition is the Micro Focus Software, in addition to the above terms and conditions:

  1. Licensee shall not use the Micro Focus Software for any purpose other than for personal educational and non-commercial activities. The Micro Focus Software may not be used for training or teaching purposes.
  2. Licensee shall not use the Micro Focus Software to compile source code for applications of more than two thousand, two hundred (2200) lines of procedural code (exclusive of lines containing comments and/or blanks) in any one (1) application or to deploy such application to any other machine.
  3. Licensee shall not copy the Micro Focus Software, nor shall Licensee distribute, transfer or assign the Micro Focus Software without specific permission from Micro Focus.

MICRO FOCUS STUDIO, NET EXPRESS, NET EXPRESS WITH .NET, AND SERVER EXPRESS. Where any version of Micro Focus Studio, Net Express, Net Express with .NET or Server Express is the Micro Focus Software, the Micro Focus Software may include or generate limited licenses solely for use by the Named User of the Micro Focus Software in order to unit test the software application program developed with Micro Focus Studio, Net Express, Net Express with .NET or Server Express on the server used to develop such software application and may not be used for system testing, production or deployment. Any use of these limited licenses outside of the development and unit testing of such software application programs is outside the scope of any limited license so generated.

MICRO FOCUS STUDIO, REVOLVE ENTERPRISE EDITION, MAINFRAME EXPRESS, NET EXPRESS. NET EXPRESS WITH .NET, AND MICRO FOCUS LICENSE SERVER. Where Micro Focus Studio, Revolve Enterprise Edition, Mainframe Express, Net Express and/or Net Express with .NET are the Micro Focus Software, Licensee may use the Micro Focus License Server that accompanies the Micro Focus Software to generate request or access codes for Licensee's use of the Micro Focus Software. Licensee may not use the Micro Focus License Server to generate multiple-user request of access codes for the Micro Focus Software unless Licensee has paid the appropriate license fees for each authorized user accessing the Micro Focus Software.

MICRO FOCUS STUDIO. Where Micro Focus Studio is the Micro Focus Software, Licensee may utilize the Micro Focus Software on both the Windows platform and one UNIX platform, which will be designated on the Product Order. Use of the Micro Focus Software on a different UNIX platform than originally licensed or on more than one UNIX platform will require additional licenses and the payment of applicable license fees. Notwithstanding the provisions of Section 1.1(a), Licensee may install the Micro Focus Software on more than one machine or Host Server, so long as the Micro Focus Software is only used by the same named user on each machine or Host Server.

MICRO FOCUS REVOLVE ENTERPRISE EDITION. Where Micro Focus Revolve Enterprise Edition is the Micro Focus Software, Licensee may only utilize the Micro Focus Software for its own internal benefit and may not use the Micro Focus Software to process third-party code or to generate reports to be delivered to a third-party for that third party's benefit without first entering into a separate agreement with Micro Focus.

MICRO FOCUS DATA EXPRESS. Where Micro Focus Data Express for z/OS is the Micro Focus Software, Licensee may utilize both the Data Subset Extraction and the Data Masking modules, however, Licensee may only use other extensions or modules that are expressly licensed and set forth in the applicable Product Order and for which Licensee has paid the respective license charges. Where Micro Focus Data Express for Distributed Systems is the Micro Focus Software, Licensee may utilize both the Data Subset Extraction and the Data Masking modules and the ODBC and Oracle Extensions, however, Licensee may only use other extensions or mainframe modules that are expressly licensed and set forth in the applicable Product Order and for which Licensee has paid the respective license charges. In all other cases where Micro Focus Data or Micro Focus Data Express is the Micro Focus Software, Licensee may only use the modules and extensions that are expressly licensed and set forth in the applicable Product Order and for which Licensee has paid the respective license charges. Additional modules or extensions may not be licensed without first licensing Micro Focus Data, Micro Focus Data Express, Micro Focus Data Express for z/OS or Micro Focus Data Express for Distributed Systems.

MICRO FOCUS ENTERPRISE VIEW. Where Micro Focus Enterprise View is the Micro Focus Software, Licensee may only use those additional modules that are listed in the Product Order and for which Licensee has paid a separate license fee. Where a Micro Focus Enterprise View module has language-specific capability, any licensed languages shall be listed in the Product Order. Support for additional languages is subject to an additional license fee.

MICRO FOCUS ENTERPRISE VIEW - RAPID ASSESSMENT OPTION. Notwithstanding the terms of Sections 1 and 5, Micro Focus Enterprise View - Rapid Assessment Option is provided to Licensee on a fixed term license basis only. The start and ending dates of the term will be set forth in the Product Order. Unless otherwise stated in the Product Order, Micro Focus Enterprise View - Rapid Assessment Option is licensed on a "Line of Code" basis.

License Agreement G5.06

LIC-GEN-MF015a