LICENSE TERMS
BORLAND JBUILDER 6 PERSONAL
NOTICE: THIS BORLAND SOFTWARE PRODUCT (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, THE "PRODUCT") IS THE PROPERTY OF BORLAND SOFTWARE CORPORATION ("BORLAND"). THE PRODUCT IS MADE AVAILABLE TO YOU, THE ORIGINAL PURCHASER, SUBJECT TO THE FOLLOWING LICENSE AGREEMENT ("LICENSE"). PLEASE READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR USING THE PRODUCT. A COPY OF THIS LICENSE IS AVAILABLE FOR YOUR FUTURE REFERENCE IN THE "LICENSE.TXT" FILE PROVIDED WITH THE PRODUCT.
YOU MAY ACCEPT THIS LICENSE BY PLACING A CHECK IN THE "I ACCEPT THE LICENSE AGREEMENT" BOX BELOW. YOU MAY REJECT THIS LICENSE, AND TERMINATE THIS INSTALLATION PROCESS, BY CLICKING THE "CANCEL" BUTTON BELOW. IF YOU DO NOT ACCEPT THIS LICENSE, THEN YOU MAY NOT INSTALL OR USE THE PRODUCT. IN THAT CASE, YOU MAY, WITHIN TEN (10) DAYS AFTER YOU FIRST RECEIVED THE PRODUCT, RETURN IT TO BORLAND OR YOUR BORLAND AUTHORIZED RESELLER, ALONG WITH ITS ORIGINAL PACKAGING AND PROOF-OF-PURCHASE, FOR A FULL REFUND. ANY USE BY YOU OF THIS PRODUCT ALSO CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.
Borland is only willing to grant you this License if you obtained the Product from Borland or a Borland authorized reseller. If you obtained the Product from any other source you may not install or use the Product.
1. Ownership. The Product is proprietary to Borland. The Product is licensed, not sold, to you notwithstanding any reference herein to "purchases." You acknowledge and agree that: (a) the Product is protected under U.S. copyright and other laws; (b) Borland and its licensors retain all copyrights and other intellectual property rights in the Product; (c) there are no implied licenses under this License, and any rights not expressly granted to you hereunder are reserved by Borland; (d) you acquire no ownership or other interest (other than your license rights) in or to the Product; and (e) Borland owns all copies of the Product, however made. You agree that you will not, at any time, contest anywhere in the world Borland’s ownership of the Product, nor will you challenge the validity of Borland’s rights in the Product. You have no rights hereunder to use any trademark or service mark belonging to Borland.
2. GRANT OF LICENSE AND SCOPE OF USE.
2.1 Grant of License. Subject to the terms and conditions of this Agreement, Borland grants to you, as an individual, a personal, nonexclusive, nontransferable and limited license to install and execute the Product on one (1) computer to develop, compile (including byte code compile), test and use your own application programs and other works ("Works") solely for personal use. You may not use the Product or any Work for any commercial, business, governmental or institutional purpose of any kind ("Commercial Purpose"). Subject to the other terms and conditions of this Agreement, you may distribute your Works to others but you may not receive any direct or indirect compensation for the distribution or use of your Works and the Works that you distribute to others may not be used for any Commercial Purpose. All rights not specifically granted to you herein are retained by Borland.
If you use the Product or any Works for any Commercial Purpose or permit others to do so, in breach of this license grant, then you agree to purchase at the then-current retail price, the number of licenses of the then-current version of JBuilder Professional Edition that is equal to the number of copies of the Product in your possession. You agree to reimburse Borland for all attorney’s fees, expenses and court costs incurred by Borland in enforcing its rights under this paragraph.
2.2 Multiple Licensed Copies. You may purchase from Borland or its authorized reseller the right to make multiple copies of the Product (each, a "Licensed Copy) or the right to permit multiple Named Users to use a Licensed Copy. Such rights will be effective only when granted in writing by Borland or its authorized reseller and are conditioned upon your payment of the applicable fees. If you purchase the right to make multiple Licensed Copies, you are granted, for each Licensed Copy, the personal, nonexclusive, nontransferable and limited license to install and execute the Licensed Copy on one (1) computer solely as permitted under Section 2.1, subject to all the terms and conditions of this Agreement. If you purchase the right to permit multiple Named Users to use a Licensed Copy then you are granted for such Licensed Copy, the personal, nonexclusive, nontransferable and limited license to install and execute the Licensed Copy on one (1) computer solely as permitted under Section 2.1 exclusively for use by such number of Named Users, subject to all the terms and conditions of this Agreement. You agree that you will not install or execute the Product on more computers than the number Licensed Copies that Borland or its authorized reseller has expressly permitted you to make and you will not allow the Product to be used by more users than the number of Named Users that Borland or its authorized reseller has expressly permitted to use each Licensed Copy.
2.3 Competitive Product Restrictions. You may not include the Product or any component thereof, including any Redistributables (as defined in Section 3) in any general-purpose software development tool, library, component, or any other product that is generally competitive with or a substitute for the Product or any other Borland product offerings; nor may you use the Product to create a product or operate a service that is generally competitive with the Product or any other Borland product offerings, including any general-purpose software development tool. The foregoing restriction does not apply, however, to your use of the Product to develop "plug-ins" (i.e., integrations created using the Product’s open tools API) so long as such plug-ins are designed to provide supplementary functionality to the Product.
3. GENERAL TERMS THAT APPLY TO COMPILED PROGRAMS AND REDISTRIBUTABLES.
3.1 Redistributables. The Product may include certain files, libraries and/or source code specifically designated as "redistributables" by Borland in the accompanying printed or on-line documentation and that are necessary to use Works created using the Product ("Redistributables"). From time to time, Borland may designate other files as Redistributables. You should refer to the documentation, including any "readme" or "deploy" files provided with the Product, for additional information regarding Redistributables. Subject to the terms and conditions of this License, you may freely redistribute source code or compiled code that is entirely your own and does not contain any Redistributables.
3.2 Licensing of Redistributables. Subject to the terms and conditions of this License including the restrictions of Section 3.3, Borland grants you the personal, non-exclusive, non-transferable and limited license to: (a) make exact copies of the Redistributables and distribute those copies solely as components of your Works and solely as required for permitting end users of the Works ("End Users") to install and execute the Works; (b) install and execute Redistributables, without modification, on computers that you own or possess solely for your own internal use; and (c) sublicense to your End Users the personal, non-exclusive, non-transferable right to install and execute Redistributables, without modification, solely as components of Works and solely for such End Users’ own internal use, subject to End Users’ compliance with the restrictions in Section 5 as to Redistributables. The rights granted to you under this Section 3.2 may not be exercised by others, including co-developers, regardless of how you might compile, link, or package your Works. These rights apply only to Redistributables and to no other file, library, source code or other component or derivative work of the Product. They may be exercised only with respect to Works created by you using a duly licensed, properly registered copy of the Product.
3.3 Certain Restrictions. Regardless of any modifications that you make and regardless of how you might compile, link, or package your Works: (a) you may not permit your End Users to modify or further distribute Redistributables or use Redistributables in any program that they create; (b) you may not use Borland's or any of its suppliers' names, logos, or trademarks to market your Works, except to state descriptively that your Work was written using the Product; (c) you may not incorporate or distribute a Redistributable with a Work or other program that is capable of functioning as a general purpose development tool, library, or component, or is otherwise generally competitive with or a substitute for the Product or the Redistributable itself; (d) all copies of the Works you create must bear a valid copyright notice, either your own or the Borland copyright notice that appears on the Product, and you may not remove or alter any Borland copyright, trademark or other proprietary rights notice contained in any portion of the Redistributables; and (e) you may only distribute Redistributables with Works that add primary and substantial functionality to the Redistributables and are not merely a set or subset of any of the Redistributables, and that are created in accordance with the terms of this License.
3.4 Relationship with End Users. Except as set forth in Section 4, there are no third party beneficiaries to this Agreement. Consequently, Borland provides no warranty at all to any person, other than the limited warranty provided to you the original purchaser of the Product, as set forth herein, and you will be solely responsible to your End Users (or anyone else who uses or acquires Works) for support, service, upgrades, or technical or other assistance (including with respect to any Redistributables included therein), and such persons will have no right to contact Borland for any services or assistance. You will indemnify, defend and hold Borland, its licensors, its suppliers and each of their respective employees, officers, directors and affiliates, harmless from and against any claims or liabilities arising out of or related to the use, procurement, reproduction or distribution of your Works by third parties.
3.5 Third Party Software. The Product, including Redistributables, may include source code, redistributable files, and/or other files provided by a third party vendor ("Third Party Product"). Since use of Third Party Product might be subject to license restrictions imposed by the third party vendor, you should refer to the on-line documentation (if any) provided with Third Party Product for any license restrictions imposed by the third party vendor. In any event, any license restrictions imposed by a third party vendor are in addition to, not in lieu of, the terms and conditions of this License.
3.6 Other Rights. Contact Borland for the applicable royalties due and other licensing terms for all other uses or distribution of the Redistributables.
4. SPECIAL TERMS.
The following terms and conditions ("Special Terms") are specific to certain editions, versions and components of the Product and are in addition to the provisions of Sections 2 and 3. If any provision of the Special Terms applicable to the Product conflicts with any other provision of this License, then the provision of the Special Terms will supercede and control.
4. SPECIAL TERMS
4.1 SPECIAL TERMS THAT APPLY TO JBUILDER 6.0 ENTERPRISE, JBUILDER 6.0 PROFESSIONAL AND JBUILDER 6.0 PERSONAL
ADDITIONAL LICENSE TERMS FOR API DECOMPILER
Notwithstanding the prohibition hereunder against decompiling the Product, Borland grants to you as the licensed user of the Product the limited right to use that portion of the Product identified as "API Decompiler" for inspecting the public application programming interface (API) of the JAVA BEANS COMPONENT LIBRARY, DATAEXPRESS, DBSWING and OPENTOOLS API modules.
4.2 SPECIAL TERMS THAT APPLY TO JBUILDER 6.0 ENTERPRISE AND JBUILDER 6.0 PROFESSIONAL ONLY
ADDITIONAL LICENSE TERMS FOR ACCOMPANYING PRODUCTS - BORLAND ENTERPRISE SERVER AND COMPONENTS
The Product may be accompanied by other Borland products ("Accompanying Products"), including BORLAND ENTERPRISE SERVER and its component parts (including but not limited to Visibroker, AppServer and Borland Enterprise Server Web Edition). These Accompanying Products do not constitute a part of the Product. These Accompanying Products are subject to separate license terms which are on the media containing the Accompanying Products and which may be viewed and accepted at the time the Accompanying Products are installed. You have no rights under this License to use any software other than the Products, and your use of the Accompanying Products may require you to purchase separate licenses and obtain separate License Key Certificates.
4.3 SPECIAL TERMS THAT APPLY TO JBUILDER 6.0 ENTERPRISE ONLY
ADDITIONAL LICENSE TERMS FOR JDATASTORE
The portion of the Product identified as JDATASTORE (if any) is not a Redistributable. Notwithstanding any provision herein to the contrary, you may only use JDATASTORE under this License to develop, compile and test Works and for no other purpose. You must purchase a separate JDATASTORE deployment license from Borland or an authorized reseller for each copy of any Work that you deploy if the Work incorporates, or requires use of, JDATASTORE or includes the file "jdslicense.jar." You are not permitted to reproduce JDATASTORE for sublicensing, resale, lending, leasing, deployment or distribution to any party, including without limitation, distributing JDATASTORE as part of a VAR, OEM, distributor or reseller arrangement. If you integrate JDATASTORE or the file "jdslicense.jar" into a Work and intend to distribute or resell the resulting integrated Work, you must contact Borland to obtain the appropriate distribution license.
The following two types of JDATASTORE deployment licenses are available from Borland:
(a) "Local Server License." When you purchase a Local Server License with respect to a particular licensed Work, Borland grants you a personal, nonexclusive, nontransferable and limited license to install and execute JDATASTORE on one (1) computer ("Local Server") solely for your own internal data processing purposes to provide a limited number of local support connections. A "local support connection" is a communication session between JDATASTORE, as resident on the Local Server, and a copy of the licensed Work that is also executing on the Local Server and that is used solely for your internal data processing needs. For more information on the number of local support connections accessible under a Local Server License you should contact Borland directly.
(b) "Unlimited Server License." When you purchase an Unlimited Server License with respect to a particular Work, Borland grants you a personal, nonexclusive, nontransferable and limited license to install and execute JDATASTORE on one (1) computer ("Unlimited Server") solely for your own internal data processing purposes to provide an unlimited number of support connections. A "support connection" is a communication session between JDATASTORE, as resident on the Unlimited Server, and a copy of the licensed Work that is executing either on the Unlimited Server or on a remote machine. You may not, under an Unlimited Server License, install or execute JDATASTORE on more than one (1) computer. An Unlimited Server License for JDATASTORE is also granted with each Deployment License purchased for Borland Enterprise Server Web Edition.
4.4 SPECIAL TERMS THAT APPLY TO JBUILDER 6.0 PROFESSIONAL ONLY
ADDITIONAL LICENSE TERMS FOR JDATASTORE AND COMPONENTS
The Product may be accompanied by another Borland software product identified as JDATASTORE (including the file "jdslicense.jar"). JDATASTORE does not constitute a part of the Product. JDATASTORE is subject to separate license terms which are on the media containing JDATASTORE and which may be viewed and accepted at the time JDATASTORE is installed. You have no rights under this License to use JDATASTORE, and your use of JDATASTORE may require you to purchase separate licenses and obtain separate License Key Certificates directly from Borland.
4.5 ADDITIONAL LICENSE TERMS APPLICABLE TO EVALUATION SOFTWARE
You may not use the Product for any commercial, business, governmental or institutional purpose of any kind. At the end of the Evaluation Period, further use of the Product by you is prohibited without the purchase of a commercial license. If you do not purchase a license for the Product at the end of the Evaluation Period, you hereby agree to permanently remove or delete the Product from all computer systems on which it was installed and destroy any software and documentation received, and not to reinstall a new copy of the Product. If you desire to continue to use the Product following the Evaluation Period, you should contact Borland or a Borland authorized reseller to order commercial licenses to use the Product.
4.6 ADDITIONAL LICENSE TERMS APPLICABLE TO SOFTWARE LICENSED FOR EDUCATIONAL USE
Subject to the terms and conditions of this Agreement, you may exercise your rights under this license to use the Product and to create Works solely for your own personal use in providing or receiving instruction within the limited scope of guided computer programming and/or software training courses in which you are a direct and personal participant, either as student or instructor ("Courses"). You may only reproduce, distribute and use Works, in source or object code form, to other participants of the Courses and then only for educational or training purposes. You may not use the Products or Works created with the products for any commercial, business, governmental or institutional purpose of any kind, except to the extent you are an instructor teaching a Course. You may also make one (1) backup copy of the Product solely to replace the original copy provided to you if the original copy is damaged or destroyed. All rights not specifically granted to you herein are retained by Borland.
4.7 ADDITIONAL LICENSE TERMS APPLICABLE TO THIRD PARTY SOFTWARE
Certain components of the Product use or incorporate third-party software programs and/or libraries ("Third-Party Software") which are loaded (in both object and source code form) on the Product media. You agree that Borland’s third-party licensors and suppliers are intended third party beneficiaries of all terms and conditions of this License intended to protect intellectual property rights in the Product (including the Third-Party Software) and limit certain uses thereof.
ADDITIONAL LICENSE TERMS FOR SITRAKA SOFTWARE
The Product includes Third Party Software provided by Sitraka Inc. ("Sitraka Software"). The Sitraka Software consists of the components identified in the JBuilder Component Palette as"JClass". Notwithstanding any provision in this License to the contrary, you may only use the Sitraka Software for proof-of-development purposes (i.e. to establish that the Sitraka Software is capable of a particular use). You may not otherwise develop, compile, test, use or distribute any Works that incorporate, or require the use of, the Sitraka Software unless you first purchase a license to do so from Sitraka Software, Inc.
ADDITIONAL LICENSE TERMS FOR /N SOFTWARE
The Product includes Third Party Software provided by /N Software, Inc. ("/n Software"). The /n Software consists of the files identified in the JBuilder Component Palette file as "IP*Works!". Notwithstanding any provision in this License to the contrary, you may only use the /n Software for developing, compiling and testing Works and for no other purpose. You may not distribute or put to a production use any Works that incorporate, or require the use of, the /n Software unless you purchase, for each such Work, a separate license to do so from /n Software.
5. Limitations. You may not: (a) modify, adapt, alter, translate, or create derivative works of the Product or merge the Product with other software other than as described in the Product’s accompanying documentation or as approved of in writing by Borland; (b) lease, rent or loan the Product to any third party; (c) sublicense, distribute or otherwise transfer the Product or any component thereof to any third party except as expressly authorized under Section 3; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Product; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Borland or its suppliers on the Product; (f) allow third parties to access or use the Product such as in a time-sharing arrangement or operate the Product as part of a service bureau or, except as expressly authorized under Sections 2, 3 or 4, otherwise for the use or benefit of third parties; (g) reproduce or use the Product except as expressly authorized under Sections 2, 3 or 4; or (h) disclose or publish performance benchmark results for the Product. The rights granted under this License apply only to this Product. You must procure a separate license to use other Borland software. Furthermore, you may not permit your End Users to conduct the restricted activities limited by items (a) through (e), (g) and (h) above insofar as they apply to Redistributables, and such End User’s sublicense rights to the Redistributables are conditioned upon compliance with such limitations. The limitations in this Section 5 apply equally to your use of the Product, in whole or in part, including any component or Redistributable.
6. LIMITED WARRANTY AND DISCLAIMER. Borland warrants to you, the original purchaser and to no other party, that any physical media included with the Product, as and when provided to you, will be free of physical defects in materials and workmanship for a period of ninety (90) days after the date that you initially acquire the Product. Your exclusive remedy and Borland's sole liability for breach of this warranty is that Borland will replace any defective media returned to Borland within the ninety (90) day warranty period. This warranty does not apply to damages resulting from misuse, abuse or neglect. Any replacement media will be warranted as above for the remainder of the original warranty period or twenty (20) days from the date we ship it to you, whichever is longer. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, THE PRODUCT IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. BORLAND HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE PRODUCT WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK FOR THE RESULTS OBTAINED USING THE PRODUCT. TO THE EXTENT THAT BORLAND MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.
7. SERVICES; UPDATES; PRODUCT CHANGES. Borland is not required under this License to provide any installation, training or other services to you. Such services, if available, must be purchased separately. If, pursuant to a separate support agreement or otherwise, Borland provides you with a new release, error correction, update, upgrade or other modification to the Product, such modification will be deemed part of the Product, and subject to the terms of this License, unless the modification is expressly provided subject to a separate license agreement. Borland reserves the right at any time not to release or to discontinue release of any Product and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Product.
8. Registration. You must register the Product with Borland as a condition to your rights to use the Product. You will be prompted to register the Product at the time of your installation or first use of the Product, at which time you will be notified (or directed to online resources explaining) how registration information provided by you may be used and you will be afforded the opportunity to opt out of certain uses of such information.
9. Confidentiality. The Product (including its underlying source code) and the terms of this License contain confidential information of Borland. You agree to hold this information in confidence, not disclose it to any person (other than your employees and individual contractors who use the Product and who have agreed to keep confidential any of Borland’s confidential information that you provide to them), and not use it for any purpose other than the use and operation of the Product as permitted under this License. These restrictions do not apply to any information which is or becomes (through no fault of yours) publicly available. If you are required by law or order of a court or other government authority to disclose Borland’s confidential information, then you will immediately notify Borland as soon as possible, but in any event prior to the disclosure, and will cooperate with Borland, at its expense and request, in any lawful action to contest or limit the scope of such required disclosure.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL BORLAND BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR DATA, ARISING FROM OR RELATING TO THIS LICENSE OR THE PRODUCT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF BORLAND KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BORLAND’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LICENSE OR THE PRODUCT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS LICENSE. THIS SECTION 10 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11. THIRD PARTY CLAIMS. Borland will defend and settle any suit brought against you by a third party (not your affiliate) based on a claim that the Product infringes upon any U.S. copyright and Borland will pay those costs and damages finally awarded against you in such suit that are specifically attributable to such claims or those amounts payable by you under a settlement of such suit. The foregoing obligations are conditioned on you: (a) notifying Borland promptly in writing of such action; (b) giving Borland sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Borland’s request and expense, assisting in such defense. If the Product becomes, or in Borland’s opinion is likely to become, the subject of an infringement claim that Borland is required to defend, then Borland may (at its option and expense) either: (a) procure for you the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing; or (c) terminate this License and your rights hereunder to use the Product and refund a pro rata portion of any license fee you paid under this License, based on a three (3) year product life. Notwithstanding the foregoing, Borland will have no obligation under this Section 11 or otherwise with respect to any infringement claim based upon: (a) any use of the Product not in accordance with this License or the products accompanying documentation: (b) any use of the Product in combination with other products, equipment, software, or data not provided by Borland; (c) any use of any version of the Product other than the most current version made available to you; or (d) any modification of the Product by any person other than Borland or its authorized agents ("Excluded Claims"). You will indemnify Borland against all liability, damages and costs (including reasonable attorneys’ fees) resulting from or related to an Excluded Claim. This section 11 states Borland’s entire liability and your sole and exclusive remedy for third-party claims relating to the Product.
12. Audit. During the term of this License and for one (1) year thereafter, upon reasonable notice and during normal business hours, Borland or its outside auditors will have the right to enter your premises and access your records and computer systems to verify that you have paid to Borland the correct amounts owed under this License and determine whether the Products are being used in accordance with the terms of this License. You will provide reasonable assistance to Borland in connection with this provision. You agree to pay the cost of the audit if any underpayments during the period covered by the audit amount to more than five percent (5%) of the fees actually owed for that period.
13. TERM AND TERMINATION.
13.1 Term. The term of this License will begin as of the date that you receive the Product and will remain in effect perpetually unless terminated under this Section 13.
13.2 Termination for Convenience. You may terminate this License for any reason, or for no reason, by giving Borland five (5) days’ written notice.
13.3 Termination for Cause. Borland may terminate this License if you breach your obligations hereunder. Borland will effect such termination by giving you notice of termination, specifying therein the alleged breach. If your breach is curable, you will have a grace period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is cured within the thirty (30) day grace period, then this License will remain in effect; otherwise, this License will automatically terminate upon the conclusion of the thirty (30) day grace period.
13.4 Effect of Termination. Upon the termination of this License for any reason the following terms shall apply: (a) all rights granted under this License will immediately terminate and you must stop all use of the Product and any Redistributables; (b) you must immediately pay to Borland all fees and expenses accrued prior to the effective date of termination; (c) you must return to Borland or destroy all copies of the Product provided to or made by you, and will, within ten (10) days after the effective date of termination, provide Borland with written certification that all such copies have been returned or destroyed; (d) you must return to Borland all of its other confidential information that you have received during the term of this License; and (e) all provisions of this Agreement with the exception of the licenses granted in Sections 2, 3 and 4, will survive termination of this License for any reason.
14. GENERAL PROVISIONS.
14.1 Canadian Transactions. If you are subject to Canadian law, you agree to the following:
The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language. / Les parties aux presentes ont expressement exige que la presente Convention et ses Annexes soient redigees en langue anglaise.
14.2 Hazardous Uses. The Product is not intended for use, and you may not use or allow others to use the Product, in connection with any application requiring fail-safe performance such as the operation of nuclear power facilities, air traffic control or navigation systems, weapons control systems, life support systems, or any other system whose failure could lead to injury, death, environmental damage or mass destruction. You agree that Borland will have no liability of any nature, and you are solely responsible, for any expense, loss, injury or damage incurred as a result of such use of the Product.
14.3 Governing Law; Venue and Jurisdiction. This License will be governed by and construed in accordance with the laws of the United States and the State of California, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable). Subject only to the provisions of Section 14.6, any legal action, suit or proceeding arising out of or relating to this License must be instituted exclusively in a court of competent jurisdiction, federal or state, located within the State of California, and in no other venue. Each party further irrevocably consents to personal jurisdiction and venue in, and agrees to service of process issued or authorized by, any such court.
14.4 No Jury Trials; No Joinder. Each party hereby irrevocably waives its right to a jury trial in any legal action, suit or proceeding between the parties arising out of or relating to this License. A copy this License may be filed with the court as written consent by both parties to a bench trial. You agree that any dispute you may have against Borland cannot be joined with any dispute of any other person or entity in a lawsuit, arbitration or any other proceeding, or resolved on a classwide basis.
14.5 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this Agreement will remain in full force and effect.
14.6 Equitable Relief. The parties acknowledge and agree that it is impossible to measure in money the damages that will accrue to Borland by reason of your breach of this Agreement and that such a breach will cause irreparable harm to Borland. In addition to any other right or remedy available at law or in equity Borland will be entitled to specific performance or injunctive relief to enforce or prevent any breach of Sections 2, 3, 4, 5 or 9 without posting a bond or other security, and may apply to any court of competent jurisdiction for such relief notwithstanding the provisions of Section 14.3.
14.7 Attorneys’ Fees. In any action, suit or proceeding arising out of or relating to this License, Borland, if it is the prevailing party, will be entitled to recover from you its reasonable attorneys’ fees and expenses in addition to any other relief that may be awarded.
14.8 Notices. A notice that is required or permitted under this Agreement must be in writing and may be delivered by facsimile, electronic mail, hand delivery, courier or mail. Notice will be deemed effective upon the earlier of actual receipt by the intended recipient or five (5) days after deposit with the U.S. Postal Service as certified or registered mail (postage prepaid and return receipt requested) addressed to recipient at its address set forth on the first page above or as amended by notice pursuant to this section.
14.9 Assignment. You may not assign this License or assign any of your rights or delegate any of your obligations under this License, by operation of law or otherwise (including by merger, sale of assets or consolidation), without Borland’s prior written consent, which may be granted, conditioned or withheld in Borland’s sole discretion. Any attempted assignment you in violation of this Section 14.10 will be void and will constitute a material breach of this Agreement. Notwithstanding the foregoing, Borland may assign this License at any time in its sole discretion. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
14.10 Export Control. You may not directly or indirectly transfer the Product, including its documentation, to any country if such transfer would be prohibited by applicable law, including the U.S. Export Administration Act and the regulations issued thereunder. You agree to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country. You will be solely responsible for identifying and complying with all laws of any jurisdiction outside of the United States regarding the import, export or use of Products and technical data supplied by Borland. You will obtain at your own expense all licenses, permits or approvals required by any government to use the Product.
14.11 U.S. Government Rights. The Product is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product with only those rights set forth in this License.
14.12 Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this License on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. This License may only be amended by a written document signed by both parties.
14.13 Entire License. This License constitutes the entire, final and exclusive agreement between you and Borland regarding the specific license transaction described herein. No prior agreements, understandings, statements, proposals or representations, written or oral, apply. No written or oral statement, advertisement or product description not expressly contained in this License can be used to alter or supplement its terms. You may not rely on any representations or statements not contained in this Agreement. Headings in this License are for reference only and have no effect on any provision’s meaning.
If you have any questions about this License, please contact your Borland authorized reseller or Borland.
If you agree to the terms and conditions of this License Agreement, please place a check in the "I ACCEPT THE LICENSE AGREEMENT" box below. This will be the legal equivalent of your signature on a written contract and the terms of this license shall be a legally binding agreement between you and Borland. You must agree to these terms and conditions in order to install and use the Product. If you do not agree with these terms and conditions, you should press the "CANCEL" button below to exit this installation process, as Borland is unwilling to license the Product to you in such case, and you may return the Product within ten (10) days after you first received it to Borland or your Borland authorized reseller, along with its original packaging and proof-of-purchase, for a full refund.
Borland Software Corporation
100 Enterprise Way
Scotts Valley, CA 95066-3249