|
<PAGE>
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)
<PAGE>
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 Lice
| 
