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Qt COMMERCIAL CREATOR LICENSE AGREEMENT
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Agreement version 1.4
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This Qt Commercial Creator License Agreement ("Agreement") is a legal agreement
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between Digia USA, Inc. ("Digia") with its registered office at 32 W.
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Loockerman Street, Suite 201, City of Dover, County of Kent, Delaware 19904,
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U.S.A., and you (either an individual or a legal entity) ("Licensee") for Qt
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Creator (as defined below).
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1. Definitions
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"Affiliate" of a Party shall mean an entity (i) which is directly or indirectly
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controlling such Party; (ii) which is under the same direct or indirect
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ownership or control as such Party; or (iii) which is directly or indirectly
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owned or controlled by such Party. For these purposes, an entity shall be
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treated as being controlled by another if that other entity has fifty percent
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(50 %) or more of the votes in such entity, is able to direct its affairs and/or
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to control the composition of its board of directors or equivalent body.
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"Applications" shall mean Licensee's software products created using Qt
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Commercial Creator and either (i) Digia Qt Commercial software products, or (ii)
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third party software products.
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"Qt Commercial Creator" shall mean the cross-platform integrated development
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environment (IDE) that is delivered to Licensee by Digia under this Agreement
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and designed to assist with development using Digia Qt Commercial software
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products or other third party software products. "Designated User(s)" shall mean
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the employee(s) of Licensee acting within the scope of their employment or
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Licensee's consultant(s) or contractor(s) acting within the scope of their
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services for Licensee and on behalf of Licensee for whom Licensee has purchased
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Digia Qt Commercial software licenses. "Initial Term" shall mean the period of
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time one (1) year from the later of (a) the Effective Date; or (b) the date Qt
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Commercial Creator was initially delivered to Licensee by Digia. If no specific
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Effective Date is set forth in the Agreement, the Effective Date shall be deemed
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to be the date the Solution was initially delivered to Licensee.
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"Digia Qt Commercial" shall mean the Qt computer software, "online" or
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electronic documentation, associated media and printed materials, including the
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source code, example programs and the documentation delivered by Digia to
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Licensee for the platforms supported by Qt Commercial Creator. "Party or
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Parties" shall mean Licensee and/or Digia.
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"Redistributables" shall mean the object code of the Digia Qt Commercial
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software products that may be distributed with or as part of Applications as
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specified in the Digia Qt Commercial software license agreement.
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"Support" shall mean standard email based developer support that is provided by
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Digia to assist eligible Designated Users in using Qt Commercial Creator in
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accordance with its established support procedures listed at:
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http://qt.digia.com/files/pdf/licenses/qt-commercial-standard-support-terms-and-conditions.pdf
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"Updates" shall mean a release or version of Qt Commercial Creator containing
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enhancement, new features, bug fixes, error corrections and other changes that
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are generally made available to users of Qt Commercial Creator that have
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contracted for maintenance and support.
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2. Ownership
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Qt Commercial Creator and Digia Qt Commercial software products are protected by
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copyright laws and international copyright treaties, as well as other
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intellectual property laws and treaties. Qt Commercial Creator is licensed, not
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sold.
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To the extent Licensee submits bug fixes or error corrections, including
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information related thereto, Licensee hereby grants to Digia a sublicensable,
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irrevocable, perpetual, worldwide, non-exclusive, royalty-free and fully paid-up
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copyright and trade secret license to reproduce, adapt, translate, modify, and
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prepare derivative works of, publicly display, publicly perform, sublicense,
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make available and distribute error corrections and bug fixes, including
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derivative works thereof. To the extent any rights do not automatically vest in
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Digia, Licensee assigns, and shall ensure that all of its Affiliates, agents,
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subcontractors and employees assign, all such rights to Digia. All Nokia�s,
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Digia's and its licensors' trademarks, service marks, trade names, logos or
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other words or symbols are and shall remain the exclusive property of Nokia,
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Digia or its licensors respectively.
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3. Validity of the Agreement
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By installing, copying, or otherwise using Qt Commercial Creator, Licensee
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agrees to be bound by the terms of this Agreement. If Licensee does not agree
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to the terms of this Agreement, Licensee may not install, copy, or otherwise use
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Qt Commercial Creator.
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In addition, by installing, copying, or otherwise using any Updates or other
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components of Qt Commercial Creator that Licensee receives separately as part of
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Qt Commercial Creator, Licensee agrees to be bound by any additional license
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terms that accompany such Updates, if any. If Licensee does not agree to the
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additional license terms that accompany such Updates, Licensee may not install,
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copy, or otherwise use such Updates.
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Upon Licensee's acceptance of the terms and conditions of this Agreement, Digia
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grants Licensee the right to use Qt Commercial Creator in the manner provided
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below.
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4. Licenses
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4.1 Using, modifying and copying
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Digia grants to Licensee a non-exclusive, non-transferable, perpetual license to
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use and copy Qt Commercial Creator for the Designated User(s) for whom Licensee
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has purchased Digia Qt Commercial software licenses. Such use shall be for the
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sole purposes of designing, developing and testing Applications. Licensee may
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install copies of Qt Commercial Creator on an unlimited number of computers
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provided that only the Designated Users use Qt Commercial Creator. Licensee may
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at any time designate another Designated User to replace a then-current
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Designated User by notifying Digia, provided that a) the then-current Designated
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User has not been designated as a replacement during the last six (6) months;
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and b) there is no more than the specified number of Designated Users at any
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given time.
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4.2 Distribution
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Licensee may distribute unmodified versions of Qt Commercial Creator in object
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code form. The distribution of the Digia Qt Commercial software-based
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Applications and Redistributables shall be governed by the applicable Digia Qt
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Commercial software license agreement between Licensee and Digia. The
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distribution of Applications that do not contain Digia Qt Commercial software or
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Redistributables shall be governed by the terms and conditions contained in such
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third party software licenses and are not covered by this Agreement.
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Except as set forth herein, Licensee shall not transfer, assign or otherwise
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dispose of Qt Commercial Creator.
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4.3 Further Requirements
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The licenses granted in this Section 4 by Digia to Licensee are subject to
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Licensee's compliance with Section 7 of this Agreement.
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5. Verification
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Digia or a certified auditor on Digia's behalf, may, upon its reasonable request
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and at its expense, audit Licensee with respect to the use of Qt Commercial
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Creator. Such audit may be conducted by mail, electronic means or through an
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in-person visit to Licensee's place of business. Any such in-person audit shall
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be conducted during regular business hours at Licensee's facilities and shall
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not unreasonably interfere with Licensee's business activities. Digia shall not
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remove, copy, or redistribute any electronic material during the course of an
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audit. If an audit reveals that Licensee is using Qt Commercial Creator in a
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way that is in material violation of the terms of the Agreement, then Licensee
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shall pay Digia's reasonable costs of conducting the audit. In the case of a
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material violation, Licensee agrees to pay Digia any amounts owing that are
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attributable to the unauthorized use. In the alternative, Digia reserves the
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right, at Digia's sole option, to terminate the licenses for Qt Commercial
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Creator.
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6. Third Party Software
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Qt Commercial Creator may provide links to third party libraries or code
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(collectively "Third Party Software") to implement various functions. Third
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Party Software does not comprise part of Qt Commercial Creator. In some cases,
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access to Third Party Software may be included along with the Qt Commercial
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Creator delivery as a convenience for development and testing only. Such source
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code and libraries may be listed in the ".../src/3rdparty" source tree delivered
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with Qt Commercial Creator (if applicable) or documented in Qt Commercial
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Creator where the Third Party Software is used, as may be amended from time to
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time, do not comprise part of Qt Commercial Creator. Licensee acknowledges (1)
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that some part of Third Party Software may require additional licensing of
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copyright and patents from the owners of such, and (2) that distribution of any
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of Qt Commercial Creator referencing any portion of a Third Party Software may
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require appropriate licensing from such third parties.
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7. Additional Conditions
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The licenses rights granted in this Agreement are subject to all of the
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following conditions: (i) Licensee may not remove or alter any copyright,
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trademark or other proprietary rights notice contained in any portion of Qt
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Commercial Creator; (ii) Licensee shall indemnify and hold Digia, its
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Affiliates, contractors, and its suppliers, harmless from and against any claims
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or liabilities arising out of the use, reproduction or distribution of
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Applications created with the assistance of Qt Commercial Creator; (iii)
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Applications must be developed using a licensed, registered copy of Qt
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Commercial Creator and the relevant Qt Software product; and (iv) Licensee may
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not use Digia's or any of its suppliers' names, logos, or trademarks under this
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Agreement.
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NOTE: The Open Source Editions of Qt products and the Qt, Qtopia and Qt Extended
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versions previously licensed by Trolltech (collectively referred to as
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"Products") are licensed under the terms of the GNU Lesser General Public
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License version 2.1 ("LGPL") and the GNU General Public License versions 2.0 and
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3.0 ("GPL") (as applicable) and not under this Agreement. If Licensee, or
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another third party, has, at any time, developed all (or any portions of) the
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Application(s) using a version of one of these Products licensed under the LGPL
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or the GPL, Licensee may not combine such development work with the Licensed
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Software and must license such Application(s) (or any portions derived there
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from) under the terms of the GNU Lesser General Public License version 2.1 (Qt
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only) or GNU General Public License version 2.0 (Qt, Qtopia and Qt Extended) or
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version 3 (Qt only) copies of which are located at
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http://www.gnu.org/licenses/old-licenses/lgpl-2.1.html,
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http://www.fsf.org/licensing/licenses/info/GPLv2.html, and
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http://www.gnu.org/copyleft/gpl.html .
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8. Limited Warranty and Warranty Disclaimer
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Digia hereby represents and warrants with respect to Qt Commercial Creator that
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it has the power and authority to grant the rights and licenses granted to
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Licensee under this Agreement. Except as set forth above, Qt Commercial Creator
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is licensed to Licensee "as is". To the maximum extent permitted by applicable
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law, Digia on behalf of itself and its suppliers, disclaims all warranties and
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conditions, either express or implied, including, but not limited to, implied
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warranties of merchantability, fitness for a particular purpose, title and
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non-infringement with regard to Qt Commercial Creator.
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9. Limitation of Liability
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If, Digia's warranty disclaimer notwithstanding, Digia is held liable to
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Licensee, whether in contract, tort or any other legal theory, based on Qt
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Commercial Creator, Digia's entire liability to Licensee and Licensee's
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exclusive remedy shall be, at Digia's option, either (A) return of the price
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Licensee paid for Qt Commercial Creator, or (B) repair or replacement of Qt
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Commercial Creator, provided Licensee returns to Digia all copies of Qt
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Commercial Creator as originally delivered to Licensee. Digia shall not under
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any circumstances be liable to Licensee based on failure of Qt Commercial
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Creator if the failure resulted from accident, abuse or misapplication, nor
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shall Digia under any circumstances be liable for special damages, punitive or
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exemplary damages, damages for loss of profits or interruption of business or
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for loss or corruption of data. Any award of damages from Digia to Licensee
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shall not exceed the total amount Licensee has paid to Digia in connection with
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this Agreement.
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10. Support
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Support will be made available by Digia to Licensee under the Digia Qt
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Commercial software license agreement executed between Digia and Licensee, if
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any. The scope of such support, if any, shall be limited to supported platforms
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and shall be subject to the support policies and procedures which may be changed
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from time to time. Following the Initial Term, Digia shall no longer make Qt
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Commercial Creator available to Licensee unless Licensee purchases additional
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Support and Updates.
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Licensee may purchase additional Support and Updates following the Initial Term
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at Digia's terms and conditions applicable at the time of renewal.
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11. Confidentiality
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Each party acknowledges that during the Initial Term of this Agreement it shall
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have access to information about the other party's business, business methods,
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business plans, customers, business relations, technology, and other
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information, including the terms of this Agreement, that is confidential and of
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great value to the other party, and the value of which would be significantly
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reduced if disclosed to third parties (the "Confidential Information").
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Accordingly, when a party (the "Receiving Party") receives Confidential
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Information from another party (the "Disclosing Party"), the Receiving Party
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shall, and shall obligate its employees and agents and employees and agents of
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its affiliates to: (i) maintain the Confidential Information in strict
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confidence; (ii) not disclose the Confidential Information to a third party
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without the Disclosing Party's prior written approval; and (iii) not, directly
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or indirectly, use the Confidential Information for any purpose other than for
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exercising its rights and fulfilling its responsibilities pursuant to this
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Agreement. Each party shall take reasonable measures to protect the
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Confidential Information of the other party, which measures shall not be less
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than the measures taken by such party to protect its own confidential and
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proprietary information.
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"Confidential Information" shall not include information that (a) is or becomes
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generally known to the public through no act or omission of the Receiving Party;
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(b) was in the Receiving Party's lawful possession prior to the disclosure
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hereunder and was not subject to limitations on disclosure or use; (c) is
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developed by employees of the Receiving Party or other persons working for the
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Receiving Party who have not had access to the Confidential Information of the
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Disclosing Party, as proven by the written records of the Receiving Party or by
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persons who have not had access to the Confidential Information of the
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Disclosing Party as proven by the written records of the Receiving Party; (d) is
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lawfully disclosed to the Receiving Party without restrictions, by a third party
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not under an obligation of confidentiality; or (e) the Receiving Party is
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legally compelled to disclose the information, in which case the Receiving Party
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shall assert the privileged and confidential nature of the information and
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cooperate fully with the Disclosing Party to protect against and prevent
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disclosure of any Confidential Information and to limit the scope of disclosure
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and the dissemination of disclosed Confidential Information by all legally
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available means.
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The obligations of the Receiving Party under this Section shall continue during
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the Initial Term and for a period of five (5) years after expiration or
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termination of this Agreement. To the extent that the terms of the
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Non-Disclosure Agreement between Digia and Licensee conflict with the terms of
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this Section 11, this Section 11 shall be controlling over the terms of the
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Non-Disclosure Agreement.
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12. General Provisions
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12.1 Marketing
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Digia may include Licensee's company name and logo in a publicly available list
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of Digia customers and in its public communications.
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12.2 No Assignment
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Licensee shall not be entitled to assign or transfer all or any of its rights,
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benefits and obligations under this Agreement without the prior written consent
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of Digia, which shall not be unreasonably withheld. Digia shall be entitled to
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assign or transfer any of its rights, benefits or obligations under this
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Agreement on an unrestricted basis.
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12.3 Termination
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Digia may terminate the Agreement at any time immediately upon written notice by
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Digia to Licensee if Licensee breaches this Agreement.
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Either party shall have the right to terminate this Agreement immediately upon
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written notice in the event that the other party becomes insolvent, files for
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any form of bankruptcy, makes any assignment for the benefit of creditors, has a
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receiver, administrative receiver or officer appointed over the whole or a
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substantial part of its assets, ceases to conduct business, or an act equivalent
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to any of the above occurs under the laws of the jurisdiction of the other
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party.
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Upon termination of this Agreement, Licensee shall return to Digia all copies of
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Qt Commercial Creator that were supplied by Digia. All other copies of Qt
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Commercial Creator in the possession or control of Licensee must be erased or
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destroyed. An officer of Licensee must promptly deliver to Digia a written
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confirmation that this has occurred.
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12.4 Surviving Sections
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Any terms and conditions that by their nature or otherwise reasonably should
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survive a cancellation or termination of this Agreement shall also be deemed to
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survive. Such terms and conditions include, but are not limited to the
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following Sections: 2, 4.1, 5, 6, 7(ii), 9, 11, 12.5, 12.8, 12.9 and 12.10 of
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this Agreement. Notwithstanding the foregoing, Section 4.1 shall not survive if
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the Agreement is terminated for material breach.
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12.5 Entire Agreement
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This Agreement constitutes the complete agreement between the parties and
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supersedes all prior or contemporaneous discussions, representations, and
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proposals, written or oral, with respect to the subject matters discussed
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herein, with the exception of the non-disclosure agreement executed by the
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parties in connection with this Agreement ("Non-Disclosure Agreement"), if any,
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shall be subject to Section 12. No modification of this Agreement shall be
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effective unless contained in a writing executed by an authorized representative
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of each party. No term or condition contained in Licensee's purchase order
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shall apply unless expressly accepted by Digia in writing. If any provision of
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the Agreement is found void or unenforceable, the remainder shall remain valid
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and enforceable according to its terms. If any remedy provided is determined to
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have failed for its essential purpose, all limitations of liability and
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exclusions of damages set forth in this Agreement shall remain in effect.
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12.6 Force Majeure
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Neither party shall be liable to the other for any delay or non-performance of
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its obligations hereunder other than the obligation of paying the license fees
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in the event and to the extent that such delay or non-performance is due to an
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event of Force Majeure (as defined below). If any event of Force Majeure
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results in a delay or non-performance of a party for a period of three (3)
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months or longer, then either party shall have the right to terminate this
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Agreement with immediate effect without any liability (except for the
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obligations of payment arising prior to the event of Force Majeure) towards the
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other party. A "Force Majeure" event shall mean an act of God, terrorist attack
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or other catastrophic event of nature that prevents either party for fulfilling
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its obligations under this Agreement.
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12.7 Notices
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Any notice given by one party to the other shall be deemed properly given and
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deemed received if specifically acknowledged by the receiving party in writing
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or when successfully delivered to the recipient by hand, fax, or special courier
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during normal business hours on a business day to the addresses specified below.
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Each communication and document made or delivered by one party to the other
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party pursuant to this Agreement shall be in the English language or accompanied
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by a translation thereof.
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Notices to Digia shall be given to:
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Digia USA Inc
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Suite 203
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2880 Zanker Road
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San Jose
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CA 95134
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U.S.A
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Fax. + 1 408 433 9360
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12.8 Export Control
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Licensee acknowledges that Qt Commercial Creator may be subject to export
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control restrictions of various countries. Licensee shall fully comply with all
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applicable export license restrictions and requirements as well as with all laws
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and regulations relating to the importation of Qt Commercial Creator and shall
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procure all necessary governmental authorizations, including without limitation,
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all necessary licenses, approvals, permissions or consents, where necessary for
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the re-exportation of Qt Commercial Creator.
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12.9 Governing Law and Legal Venue
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This Agreement shall be governed by and construed in accordance with the federal
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laws of the United States of America and the internal laws of the State of New
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York without given effect to any choice of law rule that would result in the
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application of the laws of any other jurisdiction. The United Nations
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Convention on Contracts for the International Sale of Goods (CISG) shall not
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apply. Each Party (a) hereby irrevocably submits itself to and consents to the
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jurisdiction of the United States District Court for the Southern District of
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New York (or if such court lacks jurisdiction, the state courts of the State of
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New York) for the purposes of any action, claim, suit or proceeding between the
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Parties in connection with any controversy, claim, or dispute arising out of or
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relating to this Agreement; and (b) hereby waives, and agrees not to assert by
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way of motion, as a defense or otherwise, in any such action, claim, suit or
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proceeding, any claim that is not personally subject to the jurisdiction of such
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court(s), that the action, claim, suit or proceeding is brought in an
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inconvenient forum or that the venue of the action, claim, suit or proceeding is
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improper. Notwithstanding the foregoing, nothing in this Section 12.9 is
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intended to, or shall be deemed to, constitute a submission or consent to, or
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selection of, jurisdiction, forum or venue for any action for patent
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infringement, whether or not such action relates to this Agreement.
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12.10 No Implied License
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There are no implied licenses or other implied rights granted under this
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Agreement, and all rights, save for those expressly granted hereunder, shall
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remain with Digia and its licensors. In addition, no licenses or immunities are
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granted to the combination of Qt Commercial Creator with any other software or
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hardware not delivered by Digia under this Agreement.
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12.11 Government End Users
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A "U.S. Government End User" shall mean any agency or entity of the government
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of the United States. The following shall apply if Licensee is a U.S.
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Government End User. The Licensed Software is a commercial item," as that term
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is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer
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software" and "commercial computer software documentation," as such terms are
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used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
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C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users
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acquire the Licensed Software with only those rights set forth herein. The
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Licensed Software (including related documentation) is provided to U.S.
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Government End Users: (a) only as a commercial end item; and (b) only pursuant
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to this Agreement.
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