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Exhibit 10.68
ROGUE WAVE(R) STINGRAY(R)
LICENSE TERMS AND CONDITIONS (REV. 10-JUNE-2003)
THE FOLLOWING TERMS AND CONDITIONS CREATE A
SOFTWARE LICENSE AGREEMENT ("LICENSE
AGREEMENT") BETWEEN ROGUE WAVE SOFTWARE,
INC. (REFERRED TO AS "ROGUE WAVE") AND
THE INDIVIDUAL OR SINGLE ENTITY REFERRED TO
HEREIN AS "YOU" OR "LICENSEE" FOR
THE "LICENSED SOFTWARE" (AS DEFINED BELOW).
PLEASE READ THESE LICENSE TERMS AND
CONDITIONS CAREFULLY BEFORE INSTALLING OR
USING THE LICENSED SOFTWARE. ROGUE
WAVE IS WILLING TO GRANT LICENSEE THE
FOLLOWING LICENSE TO USE THE LICENSED
SOFTWARE ACCORDING TO THE TERMS AND
CONDITIONS OF THIS LICENSE AGREEMENT ONLY ON
THE CONDITION THAT LICENSEE ACCEPTS ALL
TERMS AND CONDITIONS IN THIS LICENSE
AGREEMENT.
IF THE LICENSED SOFTWARE IS AN UPDATED OR
NEW VERSION OF ANY SOFTWARE FOR WHICH
YOU HAVE PREVIOUSLY EXECUTED A WRITTEN
SOFTWARE LICENSE AGREEMENT WITH ROGUE
WAVE ("ORIGINAL SOFTWARE LICENSE
AGREEMENT"), THE TERMS AND CONDITIONS OF SUCH
ORIGINAL SOFTWARE LICENSE AGREEMENT SHALL
APPLY AND SUPERCEDE THE TERMS OF THIS
LICENSE AGREEMENT. IN ALL OTHER CASES THE
TERMS OF THIS LICENSE AGREEMENT SHALL
APPLY AND THESE LICENSE TERMS AND
CONDITIONS WILL CONSTITUTE THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES AND SUPERSEDES ANY AND ALL
PREVIOUS COMMUNICATIONS, REPRESENTATIONS OR
AGREEMENTS, WHETHER WRITTEN OR ORAL,
WITH RESPECT TO THE SUBJECT MATTER HEREOF.
ANY TERM OR CONDITION IN ANY PURCHASE
ORDER OR OTHER DOCUMENT FURNISHED BY
LICENSEE THAT IS IN ADDITION TO OR
INCONSISTENT WITH THIS LICENSE AGREEMENT IS
HEREBY EXPRESSLY REJECTED. THE
LICENSED SOFTWARE IS LICENSED AND NOT
SOLD.
BY CLICKING ON THE "ACCEPT" BUTTON BELOW,
OR BY INSTALLING OR USING THE LICENSED
SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE
READ THIS LICENSE AGREEMENT, UNDERSTAND
IT, AND AGREE TO BE BOUND BY IT. IF You DO
NOT AGREE TO ANY OF THE TERMS AND
CONDITIONS BELOW, ROGUE WAVE IS UNWILLING
TO LICENSE THE LICENSED SOFTWARE TO
YOU, AND YOU SHOULD CLICK ON THE "DO NOT
ACCEPT" BUTTON BELOW TO DISCONTINUE THE
INSTALLATION PROCESS. IN SUCH CASE, YOU
MAY, WITHIN TEN (10) DAYS AFTER YOUR
RECEIPT OF THE LICENSE SOFTWARE, RETURN IT,
ALONG WITH ITS ORIGINAL PACKAGING
AND PROOF OF PURCHASE, AND YOU WILL RECEIVE
A REFUND OF THE PURCHASE PRICE.
1. DEFINITIONS.
1.1 "APPLICATION" means a software
application that makes use of or incorporates
the RW Libraries in its implementation
without exposing any part of the Licensed
Software application programming interface
either directly or indirectly.
1.2 "LICENSED DEVELOPER" means an
individual software developer, employed by or
under contract to Licensee, whom Licensee
has designated as a "Licensed
Developer," and for whom Licensee has paid
the applicable per product or per
module license fees required to authorize
such person to use such products or
modules to develop Applications on
Licensee's behalf.
1.3 "LICENSED SOFTWARE" means the Rogue
Wave software components, in source code
or binary form, for which Licensee has paid
the applicable per product or per
module license fees, together with the user
guides, build guides, reference
manuals and other documentation
accompanying such software components or
otherwise made available by Rogue Wave
(collectively, the "Documentation"), any
executables delivered with the software
components and any modified or updated
versions of any of the foregoing made
available to Licensee pursuant to
Licensee's purchase of Maintenance and
Support.
1.4 "MAINTENANCE AND SUPPORT" means the
technical support and software
maintenance services on the Licensed
Software for which Licensee has paid the
applicable fees.
1.5 "RW LIBRARIES" means any Licensed
Software library, in binary form, intended
to be embedded in an Application or used in
the execution of an Application.
2. LICENSE GRANTS.
2.1 DEVELOPMENT LICENSE GRANT. Subject to
the terms and conditions of this
License Agreement, Rogue Wave grants to
Licensee a nonexclusive,
nontransferable, perpetual, limited right
and license to: (a) permit Licensed
Developers to install and use the Licensed
Software, on a per product or per
module basis, for the sole purpose of
creating Applications; (b) permit a
reasonable number of other persons employed
by or under contract to Licensee to
install and use the Licensed Software for
the sole purpose of building the RW
Libraries, and to use the RW Libraries for
the sole purpose of linking,
compiling or testing Applications created
by Licensed Developers; and (c) copy
or have copied the Licensed Software and RW
Libraries as necessary for the
purpose of exercising the rights granted
under this Section 2.1 or for back-up
or disaster recovery purposes, provided,
that Rogue Wave's copyright notice and
other proprietary rights notices are
reproduced on each copy.
2.2 DEPLOYMENT AND DISTRIBUTION LICENSE
GRANT. Subject to the terms and
conditions of this License Agreement, Rogue
Wave grants to Licensee a
nonexclusive, nontransferable, perpetual,
royalty-free, limited right and
license to: (a) install and use the RW
Libraries in connection with the
execution of Applications created in
compliance with Section 2.1, on CPUs owned
or leased by Licensee or contractors under
Licensee's control, which are located
at facilities owned or leased by Licensee
or contractors under Licensee's
control; (b) distribute and grant to
Licensee's customers pursuant to a license
agreement at least as protective of the
rights of Rogue Wave as this License
Agreement the right to install and use the
RW Libraries in connection with the
execution of Applications created in
compliance with Section 2.1, on CPUs owned
or leased by such customers or contractors
under such customers' control, which
are located at facilities owned or leased
by such customers or contractors under
such customers' control; and (c) copy or
have copied the RW Libraries embedded
in or used in the execution of Applications
as necessary for the purpose of
exercising the rights granted under this
Section 2.2 or for back-up or disaster
recovery purposes, provided, that Rogue
Wave's copyright notice and other
proprietary rights notices are reproduced
on each copy.
3. LICENSE RESTRICTIONS AND LICENSEE
RESPONSIBILITIES.
3.1 DEVELOPMENT RESTRICTIONS. The
development rights granted to Licensee in
Section 2.1 may only be exercised by
individual developers employed by or under
contract to Licensee that Licensee has
designated as "Licensed Developers" and
for whom Licensee has paid the applicable
per product or per module development
license fees. If one Licensed Developer
ceases to be employed by or under
contract to Licensee or permanently ceases
work on projects involving the
Licensed Software, then Licensee may
designate an alternate developer to replace
such Licensed Developer at no additional
cost. However, the development license
is not a concurrent license that may be
used by numerous developers in shifts.
Licensee may not create a programmatic
interface that makes use of the Licensed
Software application programming interfaces
for use by any party other than
Licensed Developers and must ensure that
persons other than Licensed Developers
do not have programmatic access to the
Licensed Software or RW Libraries either
directly or indirectly. Nothing herein
shall grant Licensee the right to grant
its customers the right to programmatically
use or grant others the right to
programmatically use the Licensed Software
or RW Libraries.
3.2 GENERAL USE LIMITATIONS. All rights not
specifically granted herein are
retained by Rogue Wave. Licensee may not,
nor may Licensee permit any other
person or entity to use, copy, modify, or
distribute the Licensed Software
(electronically or otherwise), or any copy,
adaptation, transcription, or merged
portion thereof (including the RW
Libraries), or the Documentation except as
expressly authorized by Rogue Wave.
Licensee may not modify or port the Licensed
Software or RW Libraries to operate on or
deploy the RW Libraries or
Applications on platforms other than those
for which it has paid the appropriate
fees. Licensee may not, nor may Licensee
permit any other person or entity to,
reverse assemble, reverse compile, or
otherwise translate any binary forms of
the Licensed Software, except to the extent
applicable laws specifically
prohibit such restriction. Licensee's
rights may not be transferred, leased,
assigned, or sublicensed except for a
transfer of the License Agreement in its
entirety to (1) a successor in interest of
Licensee's entire business who
assumes the obligations of this License
Agreement or (2) any other party who is
reasonably acceptable to Rogue
Rogue Wave Stingray License Terms and
Conditions (Rev. 10-June-2003)
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Wave, enters into a substitute version of
this License Agreement, and pays an
administrative fee intended to cover
attendant costs. No service bureau work,
multiple-user license, or time-sharing
arrangement is permitted, except as
expressly authorized by Rogue Wave. If
Licensee uses, copies, or modifies the
Licensed Software or RW Libraries or
transfers possession of any copy,
adaptation, transcription, or merged
portion thereof to any other party in any
way not expressly authorized by Rogue Wave,
all licenses under this License
Agreement are automatically terminated.
3.3 PROPRIETARY PROTECTION. Rogue Wave
shall have sole and exclusive ownership
of all right, title, and interest in and to
the Licensed Software and all
modifications and enhancements thereof
(including ownership of all trade secrets
and copyrights pertaining thereto), subject
only to the rights and privileges
expressly granted to Licensee herein by
Rogue Wave. This License Agreement does
not provide Licensee with title or
ownership of the Licensed Software, but only
a right of limited use. Licensee must keep
the Licensed Software free and clear
of all claims, liens, and encumbrances.
3.4 COMPLIANCE VERIFICATION. Licensee must
have a commercially-reasonable
process in place to track the number of
developers using the Licensed Software
in order to ensure that the appropriate
license fees have been paid. Licensee
will, upon Rogue Wave's request, certify in
writing the number developers using
the Licensed Software, on a per product or
per module basis, as of the date of
the request. In the event Licensee fails to
provide such certification within
thirty (30) days of Rogue Wave's request,
or, if Rogue Wave reasonably believes
that a certification provided by Licensee
is inaccurate or that Licensee is
otherwise not in compliance with the terms
of this License Agreement, Licensee
will permit Rogue Wave, or a
mutually-approved independent representative, to
enter Licensee's premises, during regular
business hours, to verify Licensee's
compliance with the terms of this License
Agreement.
3.5 CONFIDENTIALITY OF SOURCE CODE.
Licensee agrees to maintain in confidence
the source code version of the Licensed
Software by using at least the same
physical and other security measures as
Licensee uses for its own confidential
technical information and documentation,
but in no case less than reasonable
measures. Licensee further agrees not to
disclose the source code version of the
Licensed Software, or any aspect thereof
(including, without limitation, header
files), to anyone other than employees or
contractors who have a need to know or
obtain access to such information in order
to support Licensee's authorized use
of the Li
