PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT: This License Agreement (“Agreement”) is a legal agreement between (a) You (either an individual or a single entity) and (b) Altibase that governs your use of any Software Product, installed on or made available by Altibase.
BY CLICKING “I AGREE”, OR BY TAKING ANY STEP TO INSTALL OR USE THE SOFTWARE PRODUCT, YOU (1) REPRESENT THAT YOU ARE OF THE LEGAL AGE OF MAJORITY IN YOUR STATE, PROVINCE JURISDICTION OF RESIDENCE AND, IF APPLICABLE, YOU ARE DULY AUTHORIZED BY YOUR EMPLOYER TO ENTER INTO THIS CONTRACT AND (2) YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE AGREEMENT TERMS, DO NOT DOWNLOAD OR USE THE SOFTWARE PRODUCT.
1. DEFINITIONS. “Altibase” means Altibase Co., Ltd., a Republic of Korea corporation, 1008-10 Fl., Daerung Post Tower #2 Guro Dong, Guro-gu, Seoul, Republic of Korea 152-790. “You” and “Your” refers to (a) a company or organization (each an “Entity”) accessing the Software, if use of the Software will be on behalf of such Entity; or (b) an individual accessing the Software, if use of the “Software” will not be on behalf of an Entity. “Contractors” refers to Your agents and contractors (including, without limitation, outsourcers). “Software” refers to Altibase software provided by Altibase pursuant to this Agreement and any updates, error corrections, and/or Software Documentation provided by Altibase. “Software Documentation” refers to Software user manuals and Software installation manuals, if any. If available, Software Documentation may be delivered with the Software. “Separate Terms” refers to separate license terms that are specified in the Software Documentation, “readmes” or notice files and that apply to Separately Licensed Third Party Technology. “Separately Licensed Third Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of this Agreement.
2. LICENSE RIGHTS AND RESTRICTIONS.
2.1 SOFTWARE LICENSE. Subject to the terms and conditions of this Agreement, Altibase hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable license to internally use the Software, subject to the restrictions stated in this Agreement.
2.2 LICENSE RESTRICTIONS. Licensee shall not: (a) Use the Software except as expressly permitted under Section 2.1; (b) separate the component programs of the Software for use on different computers; (c) adapt, alter, publicly display, publicly perform, translate, create derivative works of, or otherwise modify the Software; (d) sublicense, lease, rent, loan, or distribute the Software to any third party; (e) transfer the Software to any third party (except as provided under Section 10.5) permitted by applicable law; (f) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except as permitted by applicable law; (g) remove, alter or obscure any proprietary notices on the Software or Documentation; or (h) allow third parties to access or use the Software, including any use in any application service provider environment, service bureau, or time-sharing arrangements. No portion of the Software may be duplicated by Licensee.
2.3 THIRD PARTY SOFTWARE. Notwithstanding the terms and conditions of this AGREEMENT, all or any portion of the Software which constitutes Third Party Software, is licensed to you subject to the terms and conditions of the software license agreement accompanying such Third Party Software whether in the form of a discrete agreement, shrink wrap license or electronic license terms accepted at time of download. Use of the Third Party Software by you shall be governed entirely by the terms and conditions of such license.
2.4 NO TECHNICAL SUPPORT. Unless Altibase support for the Software, if any, is expressly included in a separate, current support agreement between You and Altibase, Altibase’s technical support organization will not provide technical support, phone support, or updates to You for the Software provided under this Agreement.
3. OWNERSHIP. Altibase retains all right, title and interest in and to all patent, copyright, trademark, trade secret and other intellectual property rights in the Software and Documentation, and any derivative works thereof. You do not acquire any other rights, express or implied, beyond the limited license set forth in this Agreement.
4. PROPRIETARY RIGHTS. Licensee acknowledges and agrees that the Software, including its sequence, structure, organization, source code and Documentation contains valuable Intellectual Property Rights of Altibase and its suppliers. The Software is licensed and not sold to Licensee, and no title or ownership to such Software or the Intellectual Property Rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software and all Intellectual Property Rights therein are the exclusive property of Altibase and its suppliers, and all rights in and to the Software not expressly granted to Licensee in this Agreement are reserved. Altibase owns all copies of the Software, however made. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of Altibase, except to the extent necessary for Licensee to Use the Software as expressly permitted under this Agreement.
5. UPDATES. All upgrades and updates are provided to Licensee at Altibase’s sole discretion and are subject to the terms of this Agreement on a license exchange basis. Licensee agrees that by using an upgrade or update Licensee voluntarily terminates Licensee’s right to use any previous version of the Software. Upgrades and updates may be licensed to Licensee by Altibase with additional or different terms.
6. EXPORT CONTROLS. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Software. You agree that such export control laws govern Your use of the Software (including technical data) and any services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, program and/or materials resulting from Software or services (or direct products thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. Accordingly, You confirm:
- You will not download, provide, make available or otherwise export or re-export the Software, directly or indirectly, to countries prohibited by applicable laws and regulations nor to citizens, nationals or residents of those countries.
- You are not listed on the United States Department of Treasury lists of Specially Designated Nationals and Blocked Persons, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor are You listed on the United States Department of Commerce Table of Denial Orders.
- You will not download or otherwise export or re-export the Software, directly or indirectly, to persons on the above mentioned lists.
- You will not use the Software for, and will not allow the Software to be used for, any purposes prohibited by applicable law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
7.1 NO WARRANTY. LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED BY ALTIBASE ‘AS IS,’ WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ALTIBASE MAKES NO WARRANTY THAT (I) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (III) THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS; OR THAT (IV) ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ALTIBASE OR THROUGH OR FROM USE OF THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
ALTIBASE SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. ALTIBASE ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT YOUR USE OF THE SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL ALTIBASE BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF THE USE OR PERFORMANCE OF ANY PRODUCTS, LOSS OF REVENUES, LOSS OF PROFITS, OR BUSINESS INTERRUPTION, EVEN IF ALTIBASE KNOWS OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL ALTIBASE’S TOTAL LIABILITY FOR ALL DAMAGES EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO USE THE SOFTWARE.
8. TERMINATION. This AGREEMENT is effective unless terminated or rejected. This AGREEMENT will also terminate immediately and without additional notice in the event you breach this AGREEMENT and/or fail to comply with any term or condition of this AGREEMENT. You may terminate this Agreement by destroying all copies of the Software.
9. CONSENT TO USE OF DATA. You agree that Altibase and its affiliates or suppliers may collect and use statistics on your use of the Software in performing backup operations and technical information you provide in relation to support services related to the Software.
10.1 RELATIONSHIP OF THE PARTIES. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties.
10.2 PUBLICITY. Altibase may use Licensee’s name and a description of Licensee’s Use of the Software for investor relations and marketing purposes.
10.3 U.S. Government End-Users. Each of the components that constitute the Software 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 Software with only those rights set forth herein.
10.4 ENTIRE AGREEMENT. You agree that this Agreement is the complete agreement for the Software and this Agreement supersedes all prior or contemporaneous agreements or representations, including any clickwrap, shrinkwrap or similar licenses, or license agreements for prior versions of the Software. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of You and of Altibase. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective.
10.5 GOVERNING LAW AND VENUE. This Agreement will be governed by the laws of the State of New Jersey, excluding any conflict of law provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state courts located in New Jersey. Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court. Notwithstanding the foregoing, either party may bring an action or suit seeking injunctive relief to protect its Intellectual Property Rights in any court having jurisdiction.