Valence Professional Developer License
PROFESSIONAL DEVELOPER LICENSE AGREEMENT
PLEASE READ THIS PROFESSIONAL DEVELOPER LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY. THIS AGREEMENT SETS FORTH THE TERMS ON WHICH CNX CORPORATION (“CNX”) MAKES AVAILABLE VALENCE™ WEB APPLICATION FRAMEWORK FOR IBM I TO PROFESSIONAL DEVELOPERS. BY PLACING AN ORDER FOR, INSTALLING, OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT.
1. DEFINITIONS. As used in this Agreement, the capitalized terms set forth below shall have the following meanings:
“You” means the individual or legal entity receiving a developer license to the Software from CNX under this Agreement.
“Software” means the version of Valence™ Web Application Framework for IBM i that You receive with this Agreement, in both object code and source code form, including the RPG Toolkit, the Valence portal, and any code libraries, examples, and extensions made available by CNX on the Valence portal for such version of the Software.
“Documentation” means CNX’s accompanying user documentation for the Software, as may be updated by CNX from time to time, in both print and electronic form.
“Application” means a browser-based application or extension developed using the Software.
“Update” means a bug fix, enhancement, or other modification to or update for the Software.
“Services” means any technical support, development, consulting, and/or other professional services provided by CNX in connection with the Software, Applications, Updates, or this Agreement.
2. DEVELOPMENT LICENSE. Subject to Your payment of the applicable Software license fees and compliance with the provisions of this Agreement, CNX hereby grants You, and You hereby accept, a perpetual (unless terminated as set forth herein), non-exclusive, non-transferable, non-sublicensable license as follows:
Development. You may download the Software (in both object code and source code form) and Documentation from CNX in accordance with CNX’s standard policies and procedures. You may install the Software on servers owned or controlled by You that meet the minimum system requirements for the Software. You may use the Software and Documentation to develop Applications for deployment as set forth below, and may develop Updates to the Software for Your internal use in connection therewith. Notwithstanding anything to the contrary, You are expressly prohibited from developing or deploying Applications or Updates that compete with or act as a substitute or replacement for the Software (e.g., You cannot create a new “flavor” of the Software).
Deployment. Each Application that You develop may be deployed solely: (i) for Your internal use; or (ii) for a client that has engaged You to develop a custom Application for the client’s internal use. As a professional developer, You are not required to submit Your Applications or Updates to CNX as a contribution to the Software community; however, if You desire to do so, You may submit Your contributions in accordance with the licensing and other terms posted on the CNX website.
Run-Time License. In order to deploy the Software with Your Applications, You must agree to the Run-Time License included as part of the install package for the Software. If You are deploying a custom Application for a client, then You must ensure that the client has agreed to the Run-Time License for the Software. The Run-Time License allows run-time use of the Software with Your Application, but does not permit the Software to be used for further development work or the creation of new Applications, absent an appropriate development license from CNX.
3. LICENSE RESTRICTIONS
No Commercial Redistribution. Except as expressly set forth in Section 2, You may not, nor shall You authorize any other person or entity to, re-distribute, license, sell or otherwise transfer or convey the Software, or any Update or Application therefor. Without limiting the foregoing, You may not: (a) distribute an Application that You develop to any person or entity other than the specific client that has engaged You to develop the custom Application, or permit any further re-distribution of the Application by such client; (b) package, promote, market or commercialize any Application or Update, whether as a standalone product or as an add-on to the Software; or (c) deploy an Application on a service bureau, time-sharing, software as a service (SaaS), or similar basis.
Other Restrictions. You may not, nor shall You authorize any other person or entity to: (a) alter, bypass, or remove the Run-Time License included with the install package for the Software; (b) disable or circumvent any “trial mode” or other restrictions for any third party products packaged with the Software; (c) develop an alternative to the Software based on or derived from, in whole or in part, the Software, the Documentation, or any other confidential or proprietary information or materials of CNX; (d) provide support or development services to third parties for the Software, other than incidental to supporting and maintaining custom Applications that You have developed and distributed to clients under this Agreement; or (e) remove, alter, or obscure any copyright or other proprietary rights notices, trademarks, logos or trade designations on the Software, Documentation, or any copies thereof.
4. UPDATES; NEW VERSIONS. From time to time, CNX may make available Updates for the Software. Updates may be issued by CNX to the Software community, or may be restricted to eligible developers that are under a valid support contract, as determined by CNX in its sole discretion. All such Updates (whether posted by CNX on the CNX website or included with the Software) shall be deemed part of the Software, and licensed to You under the license and other provisions of this Agreement, together with any supplementary license terms that CNX may provide for such Updates. Notwithstanding the foregoing, CNX reserves the right to release future versions of the Software under amended or alternative license terms, which shall be controlling with respect to Your installation and use of such future versions, and any Updates and Applications therefor.
5. PAYMENT. All Software developer licenses and Services purchased by You must be paid in full at the pricing and on the payment terms specified by CNX at the time of purchase. Unless otherwise expressly agreed to in writing by CNX, the Software is licensed on a per developer basis; if You are an entity, then You must purchase a developer license for each developer in Your company or organization that uses the Software to develop Applications. All amounts are stated and payable in U.S. Dollars and are non-refundable. All fees exclude federal, state, local and foreign taxes, levies, duties and assessments, however designated or levied (collectively, “taxes”). You are solely responsible for all such taxes, excluding taxes on CNX’s net income. Any amount not paid when due shall bear a late payment charge at the lesser rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or the highest rate permitted by applicable law. In the event any amount owed by You requires collection efforts, You agree to reimburse CNX for all reasonable costs of collection, including attorneys’ fees and costs.
6. TERM; TERMINATION. This Agreement and Your license rights hereunder shall continue unless and until terminated as set forth herein. You may terminate this Agreement for convenience at any time upon written notice to CNX; provided, however, You shall remain obligated to pay in full for all Software licenses and Services purchased. This Agreement shall terminate immediately and automatically if You violate the license terms or restrictions for the Software, or materially breach any other provision of this Agreement and fail to cure such breach within ten (10) days after receiving notice thereof from CNX. Upon the expiration or termination of this Agreement for any reason: (a) You shall pay all outstanding amounts due and owing to CNX; (b) all licenses granted to You under this Agreement shall automatically and immediately terminate; and (c) You shall cease all development work using the Software, and uninstall and erase all copies of the Software and Documentation in Your possession that are used for development purposes. Termination of this Agreement shall not affect the Run-Time License, which shall survive with respect to any Applications that You have developed and deployed in accordance with and during the term of this Agreement, unless otherwise terminated on its own terms. Sections 1, 3, 5, 6, 7, 8, 9, 10, 11 and 12 of this Agreement, and any other provisions which by their terms or nature are intended to survive, shall survive the expiration or termination of this Agreement for any reason, and shall be binding on and inure to the benefit of the parties and their permitted successors and assigns.
7. PROPRIETARY RIGHTS. The Software and Documentation are licensed, not sold. All rights not expressly granted to You under this Agreement are reserved by CNX and its suppliers. Without limiting the foregoing, CNX and its suppliers shall retain exclusive right, title and interest in and to the Software, in both object code and source code form, including the structure, organization, design, coding methodology and Documentation therefor, and all present and future copyrights and other intellectual property rights embodied therein. You shall not acquire any ownership or other interest in the Software or Services (including CNX development work), even if You provide any suggestions or feedback or engage CNX to develop any Updates or Applications, and You unconditionally and irrevocably waive any right to royalties, compensation or other claims in connection therewith. The license rights granted by CNX are limited to CNX’s and its suppliers’ intellectual property rights in the Software, and do not include any patent or other intellectual property rights of third parties.
8. SERVICES WARRANTY. CNX warrants that any Services provided by CNX to You shall be performed in a professional and workmanlike manner, and shall conform in all material respects with any specifications agreed upon in writing by You and CNX. The foregoing warranty is subject to You notifying CNX promptly, and in any event within sixty (60) days after the date of performance of the nonconforming Services, of a breach of the foregoing warranty, and providing CNX with all information and assistance reasonably requested by CNX in connection therewith. Upon receiving timely notice of a breach of the foregoing warranty, CNX shall, as CNX’s entire obligation and Your sole and exclusive remedy, use commercially reasonable efforts to re-perform, provide a workaround for, or otherwise remedy the nonconforming Services.
9. DISCLAIMER. EXCEPT FOR THE EXPRESS SERVICES WARRANTY SET FORTH ABOVE, THE SOFTWARE, DOCUMENTATION, AND SERVICES ARE PROVIDED TO YOU “AS IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND ALL USE IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, CNX AND ITS SUPPLIERS HEREBY disclaim any IMPLIED OR STATUTORY warranties of MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. THE SOFTWARE IS NOT INTENDED OR LICENSED FOR USE IN ANY HAZARDOUS OR HIGH RISK ACTIVITY. CNX DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE, OR MEET YOUR BUSINESS, TECHNICAL OR OTHER REQUIREMENTS. CNX MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY APPLICATIONS DEVELOPED OR DEPLOYED FOR USE WITH THE SOFTWARE. No employee or agent of CNX has authority to bind CNX to any ADDITIONAL representations or warranties, oral or written.
10. YOUR RESPONSIBILITIES. You are solely responsible for any Applications that You develop, and for Your use of the Software in connection therewith. You agree to indemnify, defend, and hold CNX harmless from and against any and all claims, demands, suits, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) to the extent arising out of or resulting in whole or in part from: (a) any Applications that You develop, including Your deployment of any such Application internally or with a client; (b) CNX’s use of or reliance on any code, specifications or other materials that You make available to CNX in connection with development work or other Services provided to You by CNX; (c) any contributions that You submit to CNX for the Software community, including any claim that Your contributions infringe the intellectual property rights of a third party; or (d) Your unauthorized use or misuse of the Software.
11. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL CNX OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE, THE APPLICATIONS, THE SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY BUSINESS INTERRUPTION OR DOWNTIME, COMPUTER MALFUNCTION, LOSS OF DATA, LOSS OF GOODWILL, OR OTHER COMMERCIAL DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF CNX ARISING OUT OF AND RELATED TO THE SOFTWARE, THE APPLICATIONS, THE SERVICES AND THIS AGREEMENT SHALL NOT EXCEED: (I) FOR SERVICES, THE TOTAL FEES PAID BY YOU TO CNX FOR THE NONCONFORMING SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM; AND (II) FOR ALL OTHER CLAIMS, THE TOTAL LICENSE FEES (IF ANY) PAID BY YOU TO CNX UNDER THIS AGREEMENT FOR THE SOFTWARE OR TEN DOLLARS ($10), WHICHEVER IS GREATER. THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), REGARDLESS OF THE NUMBER OF CAUSES OR INCIDENTS GIVING RISE TO ANY SUCH LIABILITY, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS ON LIABILITY IN THIS SECTION ARE AN ESSENTIAL PART OF THIS AGREEMENT, AND SHALL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
12. MISCELLANEOUS
Governing Law. This Agreement shall be governed and interpreted for all purposes by the laws of the State of Illinois, U.S.A., without giving effect to any conflict of laws principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted in any jurisdiction) do not and shall not apply to this Agreement, and are hereby specifically excluded.
Jurisdiction and Venue. Any dispute, action or proceeding arising out of or related to the Software, any Updates or Applications, the Services, or this Agreement, or the validity, construction or enforcement hereof, shall be commenced in the state courts of Chicago, Illinois, or in the case of a dispute over which the federal courts have exclusive subject matter jurisdiction, in the United States District Court for the Northern District of Illinois. Each party unconditionally and irrevocably submits to the exclusive personal jurisdiction and venue of such courts, waives any objections thereto, including any objection based on forum non conveniens, and except where exclusive federal subject matter jurisdiction exists, waives any right of removal to federal court.
Notices. All notices under this Agreement shall be in writing, and shall be delivered either personally or by postage prepaid registered or certified mail, return receipt requested. Notice to You may be delivered to the most current address on file. Notices to CNX shall be directed to the following address, unless CNX has provided You with an alternative notice address:
CNX Corporation
Attn: President
300 S. Wacker Dr., Suite 1850
Chicago, IL, U.S.A. 60606
Assignment. You may not assign or transfer this Agreement, or any rights or duties hereunder, in whole or in part, whether by operation of law or otherwise, without the prior written consent of CNX, which consent shall not be unreasonably withheld. Any attempted assignment or transfer in violation of the foregoing shall be null and void from the beginning and without effect. CNX may freely assign or transfer this Agreement, including to a successor in interest upon CNX’s merger, consolidation, acquisition, corporate reorganization, or sale or other transfer of all or substantially all of its business or assets to which this Agreement relates, and may delegate its obligations under this Agreement to its affiliates and subcontractors. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their permitted successors and assigns.
Relationship. The parties hereto are independent contractors and each shall conduct its business as a principal for its own account. Nothing in this Agreement shall be deemed to create any agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party shall have, nor shall it represent to any third party that it has, the power or authority to represent, act for, bind or otherwise create or assume any obligation for or on behalf of the other party.
Third Party Beneficiaries. Nothing contained in this Agreement, express or implied, is intended or shall be construed to give any third party any rights or remedies under or by reason of this Agreement. Notwithstanding the foregoing, the disclaimers, limitations on liability and indemnification protections for CNX under this Agreement shall extend to CNX, its directors, officers, employees, agents, affiliates, and suppliers. All references to CNX in connection therewith shall be deemed to include such persons and entities as third party beneficiaries entitled to accept all benefits afforded thereby.
Audit Rights. Upon request, You shall promptly provide CNX or its designated auditor with information, reports, and reasonable on-site access to Your facilities, systems, personnel, books and records for the purpose of verifying compliance with the license terms and restrictions of this Agreement. All audits shall be conducted in a reasonable manner designed to minimize disruption to Your normal business operations. CNX shall conduct an audit no more than once during any twelve (12) month period; provided, however, if any audit reveals material non-compliance, CNX shall have the right to conduct additional audits until compliance is achieved.
U.S. Government Restricted Rights. The Software and Documentation are licensed with RESTRICTED RIGHTS as “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation is licensed (if at all) to U.S. Government end users only as Commercial Items, and with only those rights as are granted to other licensees pursuant to this Agreement.
Export Control. The Software and underlying information and technology may not be distributed, licensed or used except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained, and further subject to compliance with this Agreement. The Software may not be exported or re-exported into any U.S. embargoed countries, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You represent and warrant that You are not located in, under the control of, or a national or resident of any country or on any such list.
Force Majeure. Under no circumstances shall CNX have any liability for any failure or delay in performance under this Agreement due to natural disaster, acts of God, war, acts of terrorism, telecommunications failures, Internet downtime, or other events beyond its reasonable control.
Equitable Relief. You acknowledge that Your breach of the license or ownership provisions of this Agreement would cause irreparable harm to CNX, the extent of which would be difficult and impracticable to assess, and that money damages would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available at law or in equity, and as an express exception to the exclusive jurisdiction requirements of this Agreement, CNX shall be entitled to obtain temporary or permanent injunctive and other equitable relief in any court of competent jurisdiction.
Severability; Construction. If any provision of this Agreement is determined to be unenforceable under applicable law, such provision shall be amended by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from this Agreement if such amendment is not possible, and the remaining provisions of this Agreement shall continue in full force and effect. The captions and section headings in this Agreement are for reference purposes only, and shall not affect the meaning or interpretation of this Agreement. The term “including” means “including without limitation.” The terms “herein,” “hereunder,” “hereto,” “hereof,” and similar variations refer to this Agreement as a whole, rather than to any particular section.
Entire Agreement. This Agreement sets forth the entire agreement of the parties, and supersedes all prior agreements and understandings, whether written or oral, with regard to the subject matter hereof. Any additional or conflicting terms proposed by You in any quote, proposal, invoice, or other writing shall not be binding on CNX, and are hereby objected to and expressly rejected. Any amendment to this Agreement or waiver of any rights of CNX hereunder must be in writing and signed by an authorized representative of CNX.