Allaire Corporation Non-Commercial Software Distribution
License Agreement Terms and Conditions
Copyright ©1999 Allaire Corporation All Rights Reserved
Important Notice
This Agreement grants you the non-exclusive right to reproduce
exact object code copies of and distribute the following Allaire
software programs – HomeSite Evaluation version, ColdFusion
Server Evaluation Version, ColdFusion Studio Evaluation Version,
ColdFusion Express, and JRun (collectively, the "non-commercial
distributables" or “NCDs”), but only in accordance with all of the
terms and conditions of this Agreement. You should carefully read
the following terms and conditions before making any copies of the
NCDs. Unless and except to the extent you have entered into a
separate written agreement with Allaire expressly providing
otherwise, copying or distributing any copy of the NCDs indicates
your agreement to be bound by these terms and conditions.
Allaire will provide you with one (1) master library copy of the NCDs
on such standard media as Allaire may determine in Allaire’s sole
discretion or, alternatively, a URL from which you may download
the NCDs. Media provided by Allaire may contain copies of
software to which you do not have a license under this Agreement.
You will have no rights or license to such copies, except as
otherwise expressly permitted by this Agreement or another valid
license agreement. Any additional or inconsistent terms of any
purchase order or other document issued by you under this
Agreement will be null and void, even if such a purchase order or
document is accepted or signed by Allaire.
License to Copy and Redistribute NCDs
Upon acceptance of this Agreement and subject to the terms and
conditions of this Agreement, Allaire grants to you a worldwide,
non-exclusive, non-transferable license to distribute exact object
code copies of the NCDs (including distribution of the NCDs as
single file downloads from an Internet based server or an Intranet
based server within your organization) and to make such exact
object code copies of the NCDs as are necessary in the
performance of this Agreement the rights granted hereunder are
subject to the terms and conditions of this Agreement, including
without limitation, the following conditions and limitations:
(1) If you distribute the NCDs with other products, the NCDs must
be distributed as a stand alone non-commercial product and
in all packaging and promotional materials, you shall
distinguish the NCD as separate and distinct from any other
software or other product with which it is distributed. If any of
the NCDs is distributed with non-Allaire software or hardware
products intended to be used with the NCDs, then prior to
distribution of the NCD, you shall adequately and extensively
test to ensure that the NCDs perform satisfactorily with such
product(s).
(2) You are specifically prohibited, without Allaire's prior written
permission, which may be withheld in Allaire’s sole discretion,
from charging, or requesting any fee, however made, for any
copies you make or distribute.
(3) The terms and conditions of Allaire's end-user license
agreement (“EULA”) incorporated by Allaire in the installation
routine for the NCDs shall serve as the only documentation
distributed by you defining each user's rights and obligations
with respect to the NCDs. You agree that installation and use
of any copies of the NCDs distributed by you shall require a
specific affirmative act of acceptance of the EULA by opening
a package or clicking a button to initiate installation only after
an opportunity to review the EULA.
You are not authorized to copy, market or distribute (or to authorize
others to do so) in any other manner without Allaire's express
written consent which may be withheld in Allaire’s sole discretion.
This Agreement does not grant you any right to, and you shall not
make and/or distribute or license variations or works derived from
the NCDs, or utilize the NCDs or information relating to it. You shall not
appoint subdistributors. You have no authority to act on behalf of Allaire
and no authority to bind Allaire by any promise or representation.
You agree that you are solely responsible for all expenses incurred in
connection with copying and distributing the NCDs. Although you will
not be liable to Allaire for any user's failure to comply with the EULA
Terms, you agree to report to Allaire any known or suspected
violation(s) of the EULA Terms and to reasonably cooperate with Allaire
in any enforcement actions taken by Allaire.
Use of Allaire's Trademarks; Marketing Activities
You acknowledge that the word “Allaire” the Allaire "A" logo, the
"allaire" tag logo, the term "ColdFusion," the ColdFusion "hand
clutching lightning bolt" logo, the word “HomeSite”and the HomeSite
"hand holding the world" logo, the word “JRun”and the “running man
with coffee cup”logo, and any and all other marks and associated logos
used by Allaire with the NCDs (the "Allaire Marks") are trademarks of
Allaire. Allaire hereby grants to you a non-exclusive, non-transferable,
limited right to use the Allaire Marks associated with the Allaire product
solely in connection with your distribution of the NCDs and only in
accordance with this Agreement and Allaire's then current Trademark
Usage Guidelines identified by Allaire from time to time. You agree to
always use on each NCD distributed, and Allaire requests that you use
on all containers and storage media therefore, the Allaire Marks
associated with the NCD, or requested by Allaire to be included with the
NCD or containers. You shall not use (or permit to be used) the Allaire
Marks on any non-advertising or on any marketing not containing
NCDs. You shall immediately cease all use of the Allaire Marks if Allaire
determines, in its sole discretion, that such use conflicts with applicable
law or the applicable Allaire policy. You agree to cooperate with Allaire
in facilitating Allaire's monitoring and control of the nature and quality of
products and services bearing the Allaire Marks. Your use of any Allaire
Mark in connection with this Agreement shall not create any right, title
or interest, in or to the use of the Allaire Marks or goodwill of Allaire and
all such use and goodwill associated with the Allaire Marks will inure to
the benefit of Allaire. You agree that you will at no time challenge or
assist others to challenge any of the Allaire Marks or the registrations
thereof, or attempt to register any trademark, marks or tradenames
confusingly similar to any of the Allaire Marks. You agree that you will
execute such assignments and other documents respecting the Allaire
Marks or any registration thereof as may be required to vest in Allaire
any and all right which you may have acquired herein or in any other
proprietary rights of Allaire, whether by operation of law, estoppel or
otherwise. If local government regulations prevent the transfer of any
such registrations or rights to Allaire, you will assist in the transfer of
such registration and rights to a nominee of Allaire’s choice. You
acknowledge and agree that you shall not have the right to use any
trademarks associated with any third party supplier of technology
contained within the NCDs to advertise or promote the NCDs without
first obtaining a separate trademark license from such supplier.
You and your employees and agents shall not remove, alter, deface or
overprint any patent, trademark, copyright, or other proprietary rights,
notifications or “restricted rights” or “limited rights” legends (or their
equivalent) placed on or included with the NCDs. In addition, you shall
place a notice in your packaging for and in all promotional materials for
or where otherwise agreed upon by the parties, which reads: "(Allaire
product name)” is included under license from Allaire Corporation.
Copyright 1995-1998, Allaire Corporation. All rights reserved."
If any of the NCDs is to be distributed with non-Allaire software or
hardware products intended to be used with the NCD, then prior to
such distribution (1) you shall verify the compatibility of the NCDs with
such non-Allaire software or hardware products, and (2) you represent
and warrant that you have adequately and extensively tested the NCDs
with such non-Allaire products and have verified that the NCDs are
compatible with and will operate as intended with such non-Allaire
software or hardware products, In addition, Allaire requests that all
packaging (box and any CD packaging therein) which contains both
NCDs and non-Allaire products contain Allaire’s allaire™ Logo
or other logo requested by Allaire, provided that you shall use the
Allaire Marks in accordance with this Agreement and Allaire’s then
current Trademark Usage Guidelines. You agree to feature the
NCDs and the Allaire Marks at least as prominently as your name
or logo and as any other third party product with which the NCD is
distributed.
Allaire may request from time to time that you submit representative
advertisements, promotions and any other use of the Allaire Marks
for review and approval prior to release or future releases by Allaire.
Product Updates
In the event that Allaire elects to make available under this
Agreement an update to any of the NCDs, Allaire shall provide you
with as much notice as Allaire determines reasonably possible of
the availability of any such update. Upon your receipt of such
update, you shall discontinue making copies of the superseded
version and shall thereafter only make copies of the updated
version. Nothing in this Agreement shall limit Allaire's right to
change the functionality or pricing of the NCDs or Allaire's and its
suppliers' rights to change the functionality of the NCDs at any
time.
Damages, Indemnification, Export Law Assurances and Miscellaneous
shall survive the termination of this Agreement.
Disclaimer of Warranties and Limitation on Remedies and
Damages
ALLAIRE PROVIDES NO REMEDIES OR WARRANTIES, WHETHER
EXPRESS OR IMPLIED, FOR ANY OF THE NCDs. NCDs ARE
PROVIDED "AS IS." IN NO CASE SHALL ALLAIRE BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES OR LOSS, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS OR THE INABILITY TO USE EQUIPMENT OR ACCESS
DATA, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH
OF EXPRESS OR IMPLIED WARRANTIES, BREACH OF
CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER
LEGAL THEORY. THIS IS TRUE EVEN IF ALLAIRE IS ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL
ALLAIRE'S LIABILITY EXCEED THE AMOUNT OF THE LICENSE
FEE ACTUALLY PAID BY YOU TO ALLAIRE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES SO THE WARRANTY LANGUAGE ABOVE
MAY NOT APPLY TO YOU. IN SUCH CASE, ALLAIRE'S LIABILITIES
SHALL BE LIMITED BY THE ABOVE LIMITATION OF REMEDIES
PROVISION.
No Additional Rights or Licenses
Indemnification
You acknowledge and agree that except for the rights granted by
this Agreement, all other rights, and all title and interest in and to
the NCDs and related documentation remain the sole and exclusive
property of Allaire, and that you do not derive and will not assert
any title or interest in or to the software or related documentation.
The NCDs are protected by the copyright laws of the United States
and international copyright treaties. All rights not specifically
granted herein to you are reserved to Allaire. You acknowledge
and agree that the NCDs are being licensed, not sold, to you and
that any distribution or delivery of the NCDs to anyone will be by
license, and not by sale. Without limiting the generality of the
foregoing, you do not receive any rights to any patents, copyrights,
trade secrets, know how, trademarks rights to the software or
related documentation or any other intellectual property rights. You
may not modify or translate the NCDs or related documentation, or
decompile, disassemble or reverse engineer the NCDs.
You agree to defend, indemnify and hold harmless Allaire against and
in respect of any loss, damages, obligations, penalty, deficiency or
liability (including, without limitation, attorneys’ fees) imposed upon,
incurred by or asserted against Allaire that result from or are alleged to
result from (a) acts or omissions in connection with this Agreement, or
in connection with the NCDs (b) acts of negligence or
misrepresentations by you, your employees, agents or resellers; (c) your
breach of any provision of this Agreement or your failure to meet your
obligations to or perform any acts required under agreements with your
employees, agents or resellers (d) the relationship between you and any
of your employees and agents, whether under industrial accident laws,
worker's compensation laws or any other laws applicable to employers
and employees; (e) any modification or alteration of the NCDs (other
than modifications made by Allaire); and/or (f) any warranty, condition,
representation or indemnity granted by you for the NCDs.
Export Law Assurances
Business Practices
You agree at all time to comply with all applicable laws, rules and
regulations, and to avoid deceptive, misleading or unethical practices,
and conduct business in a manner that reflects favorably at all times on
Allaire and Allaire's technology.
You acknowledge that the NCDs are subject to the export control laws
and regulations of the United States. You confirm and agree that you
will not export the NCDs, directly or indirectly, to any country or end-user
that is subject to United States export restrictions, or import into any
country except as permitted by the laws and regulations of the
applicable country.
Recordkeeping and Reporting
U.S. Government Licensing Rights
Allaire requests that you keep full and accurate accounts and
records that substantiate the number of copies of the NCDs
reproduced and distributed by you. And that you report the number
of NCDs that you have reproduced and distributed in such manner,
including by filling out and submitting a form located at a URL
provided by Allaire, as Allaire may request.
If the software is licensed under a U.S. Government contract, you
acknowledge that the software and related documentation are
"commercial items," as defined in 48 C.F.R 2.01, consisting of
"commercial computer software" and "commercial computer software
documentation," as such terms are used in 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1. You also acknowledge that the software is a
"commercial computer software" as defined in 48 C.F.R. 252.2277014(a)(1). U.S. Government agencies and entities and others
acquiring under a U.S. Government contract shall have only those
rights, and shall be subject to all restrictions, set forth in this Agreement.
Termination
Unless and except to the extent you have entered into a separate
written Agreement with Allaire providing otherwise, Allaire may
terminate your rights under this Agreement at any time for any
reason (or no reason) upon notice. You may terminate this license
at any time by written notice to Allaire. Upon the termination of a
license for any reason, your rights under this Agreement, including
without limitation your license to copy and distribute the NCDs and
use the Allaire Marks will terminate immediately and you must
promptly return to Allaire or destroy all copies of the software and
related documentation covered by the license. Notwithstanding the
termination of this Agreement, the provisions relating to No
Additional Rights or Licenses, Business Practices, Termination,
Disclaimer of Warranties and Limitation on Remedies and
Miscellaneous
The internal laws of the Commonwealth of Massachusetts shall control
this Agreement if you are located anywhere other than Canada; the
internal laws of the Province of Ontario shall control if you are located in
Canada. This Agreement and the applicable EULA is the complete
agreement between you and Allaire concerning the NCDs. The terms
and conditions of this Agreement shall prevail notwithstanding any
conflict with the terms and conditions of any acknowledgement,
business forms, document or other instrument submitted by you. Any
modification to the terms of this Agreement or the EULA Terms will be
effective only if in writing signed by both parties. The failure or delay of
Allaire to exercise any of its rights under this Agreement or upon
any breach of this Agreement shall not be deemed a waiver of
those rights or of the breach. You and Allaire are independent
contractors and shall not be deemed to be partners, joint venturers
or agents of the other.
Signature: ________________________________________
Signature: ________________________________________
Name: ___________________________________________
Name: ___________________________________________
Title: ____________________________________________
Title: ____________________________________________
Company: ________________________________________
Company: Allaire Corporation
Address: _________________________________________
_________________________________________
_________________________________________
Address: One Alewife Center
Cambridge, MA 02140
USA____________________________________