SOFTWARE LICENSE AGREEMENT

READ THIS AGREEMENT BEFORE INSTALLING THE SOFTWARE.

THANK YOU FOR CHOOSING THIS ILOG SOFTWARE PRODUCT. BY CLICKING ON THE
"I AGREE" BUTTON OR BY DOWNLOADING OR OTHERWISE INSTALLING THE
SOFTWARE, YOU ("LICENSEE" or "YOU") ARE AGREEING TO THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, PLEASE CONTACT YOUR
SALES REPRESENTATIVE. IN THIS AGREEMENT, "ILOG" MEANS ILOG S.A. AND
ITS SUBSIDIARIES.
This Agreement specifies how Licensee may use the computer software
and related documentation, which Licensee receives from ILOG. No
purchase order, other document, exhibit or addendum, shrinkwrap
agreement, clickwrap agreement or any handwritten or typewritten text
purporting to modify or supplement the text of this Agreement will add
to or vary the terms of this Agreement unless signed by an authorized
representative of both parties.
1. Definitions.
A. "Agreement" means these general terms and conditions and any
Purchase Order (exclusive of any preprinted terms and conditions) that
references this Agreement and any written amendments to any of the
foregoing executed by the parties.
B. "Application" means any software program that is created by or
for Licensee using the Development Software and which embeds and
executes the Deployment Software.
C. "Application Use" means a single execution of the Deployment
Software in an Application.
D. "Application User" refers to an individual who may use a
single copy of an Application.
E. "CPU" means a single central processing unit (i.e. a
processor) in a computer or server.
F. "Development Software" means an ILOG class library, component
or development tool.
G. "Deployment Software" means the portions of the Development
Software that are integrated with other software programs, tools and
code and embedded into an Application.
H. "Documentation" means the reference manual and any other user manual tha
t accompanies the Development Software.
I. "Licensed Software" means the Development Software and the
Deployment Software.
J. "Maintenance" means the technical and customer support offered
by ILOG for the Licensed Software.
K. "Platform" means a specific combination of hardware, operating
system software, and other software (e.g., compiler, window manager,
Java Virtual Machine, etc.) on which ILOG supports and Licensee may
use the Licensed Software.
L. "Purchase Order" means an order for Licensed Software and/or
Maintenance that has been issued to ILOG by Licensee and that is
accepted by ILOG and is consistent with an ILOG quote.
M. "Version" means a release of the Development Software, that is
identified in the form of X.Y, where X represents a major release or
base level version, and Y represents a minor release level version.
2. License Grants.
Subject to the terms and conditions of this Agreement including the
payment of any applicable license fees, ILOG grants to Licensee a
perpetual (unless otherwise specified in an applicable Purchase
Order), non-exclusive, worldwide, non-transferable (except pursuant to
a permitted assignment as described in Section 6), license to:
(a) Use the Development Software, for the design, development and
support of an Application on the Platform(s), as specified in an
applicable Purchase Order. The foregoing usage right is referred to
as a "Development License." The number of Development Licenses that
Licensee has purchased from ILOG is indicated on an applicable
Purchase Order. If Licensee has contracted with third parties to
perform some or all of the development work for the creation or
upgrading of the Application(s), such third party may have access to
the Development Software so long as the third party's use of the
Development Software is consistent with this Agreement. Licensee may
make two (2) copies of the Development Software for each Platform for
which Licensee has purchased a Development License, for normal backup
and archival purposes.
(b) Use the Deployment Software on the Platform, as an embedded
component of Licensee's Application. Licensee's Application may be
used in a production environment, or in a non-production environment
(as more specifically described below), so long as Licensee's use of
the Application is specifically and directly in furtherance of
Licensee's internal business operations only. The foregoing usage
right is referred to as a "Deployment License." The number and type
(i.e., "Use-based" or "CPU-bound") of Deployment Licenses that
Licensee has purchased appears on an applicable Purchase Order. A
non-production environment means the Application is used for
Application integration, back-up, testing and quality assurance,
and/or training of Licensee's employees. If Licensee has contracted
to have its Application-related internal business operations performed
by third parties, such third party(s) may have access to the
Application so long as the third party's access and use of Licensee's
Application is consistent with the terms of this Agreement.
(c) Use the Documentation in a manner consistent with the above
uses of the Licensed Software and reproduce portions of the
Documentation as necessary to design, develop and update the
documentation, instructions and user's guides relating to Licensee's
Application, whether in printed or electronic format. Licensee may
incorporate portions of the Documentation into its own documentation.
This license does not give Licensee the right to reproduce and
distribute identical copies of the Documentation. All proprietary
notices contained in the original copies of the Documentation must be
reproduced and included in the portions of the Documentation, if any,
that are incorporated into Licensee's documentation for its
Application.
3. License Restrictions.
(a) Licensee agrees that no Application may give direct or exposed
access to the component library application programming interface of
the Development Software and in the case of Deployment Software
written in the Java programming language, Licensee shall ensure, by
technical solution and/or by contract, that the Application User may
not decompile, nor develop with such Deployment Software, nor invoke
any of the Development Software's application programming interfaces.
(b) Licensee agrees that it will not, and will use best efforts to
prevent Licensee's employees, agents or representatives from doing or
attempting any of the following: (i) translating, disassembling,
decompiling, reverse compiling or reverse engineering the Development
Software (except as permitted by law); (ii) modifying, copying (except
as permitted herein) or creating derivative works from the Development
Software (except for the Application development specifically
authorized herein); (iii) giving, renting, leasing, loaning, or
distributing the Licensed Software and/or Documentation or
transmitting the Application over an external network; (iv) providing
information processing services to any third party with the
Application; or (vi) exceeding the number of licenses purchased
(alternatively, Licensee agrees to purchase the number of licenses
corresponding to the excessive use).
(c) Licensee may not use the Licensed Software on any Platform
that is not supported by ILOG, as indicated in the Documentation.
4. License Purchase/Terms of Payment.
For each use or user of the Development Software, Licensee shall be
required to purchase a Development License; (ii) for each use of an
Application in a production environment, Licensee shall be required to
purchase a Deployment License; and (iii) for each use of an
Application in parallel to the production environment (including for
back-up, integration and/or testing purposes), Licensee shall be
required to purchase a Deployment License. The terms of payment are
net 30 days from receipt of an ILOG invoice, unless otherwise agreed
in writing by ILOG.
5. Title.
ILOG retains all rights in the Licensed Software and Documentation not
granted herein and no license rights are impliedly granted to
Licensee.
6. Transfer and Assignment by Licensee.
Except with respect to third party contractors that are performing
development or Application-related internal operational services for
and on behalf of Licensee, to which Licensee may temporarily transfer
Licensee's rights hereunder, Licensee may not assign or transfer any
of the Licensed Software and/or Documentation or assign this Agreement
in any manner without ILOG's prior written consent, which consent
shall not be unreasonably withheld. In the event that Licensee
permits a third party to use the Development Software or the
Application, as permitted herein, Licensee assumes full responsibility
for such third party's compliance with this Agreement. Should
Licensee's day to day operations experience a change in ownership or
control ("Change of Control"), Licensee shall be required to provide
ILOG with notice in advance of the Change of Control. In the event of
a Change of Control, Licensee shall be entitled to assign this
Agreement without ILOG's advance written consent (provided the notice
described above has been given) except where (i) the purported
assignee is a direct competitor of ILOG's, in ILOG's reasonable
judgment, or (ii) the purported assignee already has a contract with
ILOG. In each of the foregoing specified instances, Licensee shall be
required to seek ILOG's written consent to an assignment, which may be
withheld in ILOG's discretion. It is further understood and agreed
that consent by ILOG to an assignment in one instance shall not
constitute consent to any other assignment. All assignees are bound
by the terms and conditions of this Agreement. Any attempted
assignment in conflict with the foregoing provisions is void.
7. No Sublicense or Application Licensing Rights.
Licensee may not sublicense any of the Licensed Software and/or the
Documentation or license to third parties any Application created by
or on behalf of Licensee.
8. Reasonable Controls.
Licensee will implement reasonable controls to insure that Licensee
does not exceed the number of licenses of Licensed Software designated
in an applicable Purchase Order.
9. Use of ILOG's Proprietary Marks and Logos.
Licensee agrees at all times to comply with ILOG's Trademark and Logo
Usage Guidelines, which can be found at
www.ilog.com/corporate/legal/logo.cfm.
10. Delivery and Acceptance.
All deliveries hereunder shall be F.O.B. from the ILOG facilities from
which the Development Software is shipped and shall be deemed accepted
upon delivery to the carrier. If Licensee downloads the Development
Software electronically, acceptance of the Licensed Software shall be
deemed to have occurred as of the date of the first completed
download. Licensee shall be deemed to have completed any download
that is commenced unless Licensee notifies ILOG immediately that it
was unable to complete the download.
11. Limited Warranty.
ILOG warrants to Licensee that for a period of one-hundred eighty
(180) calendar days from delivery or download of the Development
Software (the "Warranty Period"), such Licensed Software, if operated
as directed on the Platform, will substantially achieve the
functionality described in the Documentation in all material respects.
Licensee must report warranty claims to ILOG within five (5) days
after expiration of the Warranty Period. ILOG does not warrant that
Licensee's use of Licensed Software will be uninterrupted or that the
operation of such Licensed Software will be error-free. Licensee's
sole and exclusive remedy for any breach of the above warranty shall
be that ILOG, at its option, and at its own cost and expense, either
(i) repairs or replaces the defective Licensed Software, or (ii)
provides Licensee with a reasonable workaround so that the Licensed
Software substantially achieves the functionality described in the
Documentation. If neither of the foregoing alternatives is reasonably
feasible in ILOG's sole discretion, Licensee shall have the right to
return the Licensed Software in question and ILOG shall refund to
Licensee all fees paid for the defective Licensed Software. In the
event the Warranty claim concerns a new Version provided pursuant to
ILOG's Maintenance terms, the foregoing right to refunded license fees
shall not apply; instead, Licensee shall only receive a refund of the
Maintenance fees paid for the defective Licensed Software for the year
in which the new Version was distributed. Repaired, corrected, or
replaced Licensed Software shall be covered by this limited warranty
for the full one-hundred eighty (180) calendar days of the original
Warranty Period.
The above warranty shall not apply if: (i) the Licensed Software has
been modified in any respect by Licensee; (ii) if the Licensed
Software is used on or in conjunction with hardware or software other
than the unmodified version of the Platform with which the Licensed
Software was designed to be used as described in the Documentation; or
(iii) Licensee is not using the most current Version, and the warranty
claim would have been avoided by the use of the most current Version,
provided such Version was made available to Licensee.
EXCEPT FOR THE ABOVE, ILOG MAKES NO OTHER EXPRESS, IMPLIED OR
STATUTORY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND, WITHOUT
PREJUDICE TO THE INDEMNIFICATION PROVIDED FOR IN SECTION 14,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
12. Confidentiality of Licensed Software.
During the term of this Agreement and surviving its expiration or
termination, Licensee hereby acknowledges ILOG's contention that the
structure, organization and underlying source code of the Licensed
Software are the valuable trade secrets of ILOG and/or its Licensors,
and that the Documentation is copyright protected. If Licensee becomes
aware of the unauthorized possession or use of any Licensed Software
or of the Documentation supplied under this Agreement, Licensee shall
promptly notify and provide details to ILOG.
13. Limitation of Liability.
EXCEPT FOR SECTIONS 3(a) and (b) ("LICENSE RESTRICTIONS") AND 14
("INDEMNIFICATION"), NEITHER PARTY'S AGGREGATE LIABILITY FOR ANY CLAIM
ARISING OUT OF THIS AGREEMENT WILL BE MORE THAN THE AMOUNT OF CHARGES
FOR THE LICENSED SOFTWARE PAID BY LICENSEE UNDER THIS AGREEMENT DURING
THE (12) MONTHS IMMEDIATELY BEFORE THE DATE OF THE INITIAL EVENT
RESULTING IN SUCH CLAIM. THIS LIMIT SHALL APPLY TO ANY AND ALL CLAIMS
REGARDLESS OF THE LEGAL THEORY ON WHICH THEY ARE BASED, AND SHALL
INCLUDE ALL COSTS AND FEES. NEITHER PARTY WILL BE LIABLE UNDER THIS
AGREEMENT FOR LOST PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT,
INCIDENTAL OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF
THE FURNISHING, FUNCTIONING OR USE OF THE LICENSED SOFTWARE OR ANY
SERVICE PROVIDED UNDER THIS AGREEMENT OR OF THE LICENSES GRANTED
HEREIN, REGARDLESS OF THE LEGAL THEORY ON WHICH THEY ARE BASED, EVEN
IF THAT PARTY HAS BEEN ADVISED OF OR SHOULD HAVE REALIZED THE
POSSIBILITY OF SUCH DAMAGES.
14. Indemnification.
ILOG will defend (at its expense), indemnify and hold Licensee, its
officers, directors, employees, and any third party agents performing
development work for or on behalf of Licensee as permitted under this
Agreement, harmless against any claim, suit or proceeding brought
against Licensee based on a claim that the Licensed Software (so long
as it has not been modified in any respect) infringes a patent
(limited to those granted by the U.S., and member countries of the
European Union), a copyright enforceable in any country which is a
signatory to the Berne Convention, a trademark, or a trade secret.
Such indemnification obligation will require that Licensee: (i) give
ILOG prompt written notice of any such claim; (ii) allow ILOG to
control the defense and settlement of such claim; and (iii) provide
ILOG with all information and assistance (at ILOG's expense) for
defense and settlement of such claim. ILOG will not be responsible
for any settlement or compromise made without its consent.
If such infringement claim or action has occurred or in ILOG's
judgment is likely to occur, Licensee shall allow ILOG, at ILOG's
option and expense, to either: (a) procure for Licensee the right to
continue using the Licensed Software at no additional charge to
Licensee; (b) modify such Licensed Software to become non-infringing
at no additional charge to Licensee; (c) replace said Licensed
Software with materially equivalent non-infringing software at no
additional charge to Licensee; or (d) if none of the foregoing
alternatives is reasonably feasible in ILOG's sole discretion,
Licensee shall return the Licensed Software in question and ILOG shall
refund the corresponding license fees paid, depreciated over a
straight line five year period. The foregoing represents Licensee's
sole and exclusive remedies for any infringement claim or action
arising out of Licensee's use of the Licensed Software. ILOG SHALL
HAVE NO OBLIGATION TO DEFEND OR HOLD LICENSEE HARMLESS IF ANY ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS IS BASED UPON (i) USE
OF THE LICENSED SOFTWARE IN COMBINATION WITH ANY EQUIPMENT, DEVICES,
OR SOFTWARE NOT DELIVERED BY ILOG IF SUCH INFRINGEMENT CLAIM COULD NOT
BE MADE AGAINST THE LICENSED SOFTWARE ALONE; (ii) USE OF THE LICENSED
SOFTWARE IN A MANNER FOR WHICH IT WAS NOT INTENDED AS STATED IN THE
DOCUMENTATION; OR (iii) USE OF OTHER THAN THE MOST CURRENT VERSION IF
SUCH CLAIM WOULD HAVE BEEN PREVENTED BY THE USE OF SUCH VERSION AND
SUCH VERSION HAS BEEN MADE AVAILABLE TO LICENSEE.
15. Term and Termination.
(a) Term. This Agreement shall take effect upon acceptance of the
Licensed Software and shall remain in effect thereafter unless
terminated in accordance with the following provisions.
(b) Termination by ILOG. If Licensee has failed to pay any
license fees due and payable, ILOG shall have the right (in addition
to all other available remedies) to terminate the license(s)
corresponding to the non-payment upon ten (10) business days prior
written notice, without further obligation or liability to Licensee.
ILOG may terminate this Agreement, and all of the licenses subject
thereto (in addition to any other available remedies), for a material
breach by Licensee of any of the provisions contained in Sections 2
(License Grants), 3 (License Restrictions), 6 (Transfer and Assignment
by Licensee), 7 (No Sublicense or Application Licensing Rights), 12
(Confidentiality of Licensed Software), or 17 (Compliance with Laws).
ILOG shall provide notice that a material breach has been committed
and, unless the parties agree to a longer period, Licensee shall have
thirty (30) business days to cure any such breach. Upon termination
under this Section (b), Licensee shall return all copies of the
Development Software and Documentation to ILOG or certify as to their
destruction, and destroy all copies of the Deployment Software,
whether or not embedded in Applications.
(c) Termination by Licensee. Licensee shall have the right to
terminate this Agreement if ILOG commits any material breach and
fails to remedy such breach within thirty (30) days, unless the
parties agree to a longer period, after written notice by Licensee to
ILOG of such breach. Upon termination under this Section (c),
Licensee shall continue to have the right to use the Development and
Deployment Licenses purchased hereunder, so long as Licensee continues
to abide by Licensee's obligations relating thereto. To the extent
that the breach concerns Section 11 (Warranty) or 14 (Indemnification)
and the foregoing termination rights are in conflict with the remedy
provisions of these sections, the terms of Section 11 or 14, as
applicable, will prevail.
(d) Bankruptcy. Either party shall have the right to terminate
this Agreement and the licenses granted herein, effective immediately
and without prior notice, if the other party goes into liquidation or
files for bankruptcy.
16. Taxes.
Licensee shall be responsible for any taxes owed in connection with
Licensee's purchase of the Licensed Software.
17. Compliance with Laws.
Each party agrees that it will strictly comply with all national,
federal, state, territorial and local laws and regulations, including
but not limited to import or export laws and regulations, pertaining
to the use of the Licensed Software and/or Documentation.
18. Miscellaneous.
(a) Complete Agreement. This Agreement represents the complete
agreement between the parties with respect to its subject matter and
supersedes all prior and contemporaneous agreements, understandings,
and any other negotiations and discussions between them with respect
to the same subject matter, unless any duly executed written agreement
entered into between ILOG and Licensee explicitly supersedes, amends
or takes precedence over this Agreement.
(b) Notice. All notices required hereunder shall be in writing
and shall be deemed to have been duly given if delivered in person, by
commercial overnight courier or by facsimile, if receipt of such
facsimile can be established by competent evidence.
(c) Severability. If any portion of this Agreement becomes
unenforceable or illegal, such portion shall be deemed eliminated and
the remainder of this Agreement shall remain in effect to the extent
practical.
(d) Governing Law. The laws of the jurisdiction where the ILOG
entity providing the Development Software has its principle place of
business shall govern this Agreement, without regard to such
jurisdiction's conflicts of laws principles.
(e) Waiver. No waiver of any breach of this Agreement shall be
effective unless in writing, nor shall any waiver be treated as a
waiver of any subsequent breach of any provision of this Agreement.
(f) No Agency. Nothing in this Agreement shall be construed to
create any agency, partnership or other form of joint enterprise
between the parties.
(g) Maintenance Services. If offered by ILOG, Licensee may elect
to receive ILOG's maintenance services under the terms of ILOG's
standard maintenance contract, subject to Licensee's payment of the
required fees thereunder.
(h) Assignment by ILOG. ILOG may assign this Agreement as a
matter of right, in whole or part, without the prior written consent
of Licensee in the event of a merger, acquisition, reorganization,
consolidation or change in control or ownership. Licensee's
assignment rights are as detailed in Section 6 above. All of the
terms, conditions, covenants, and agreements contained herein shall
inure to the benefit of, and be binding upon, any such parent company
or successor corporation and any permitted assignees of the respective
parties hereto.
(i) Inconsistencies Between Agreement and Purchase Orders and
Other Documents. This Agreement shall govern and control in the case
of any inconsistency between it and any Purchase Order, any other
license terms or agreements not duly executed in writing by both
parties or other document issued by either party.