Telerik End User License Agreement for Telerik OpenAccess ORM Free Edition

(Last Updated November 16, 2011)

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IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE (Telerik.com).  THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “You”), AND TELERIK AD (“Telerik” or “Licensor”).  PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AT THE BOTTOM OF THIS AGREEMENT IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  BY CHECKING THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AND/OR BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY TELERIK THROUGH THIS WEB SITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.  

1. Software License

1.1 License Grant.  Subject to the terms and conditions set forth in this Agreement, Telerik hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, royalty-free, sublicenseable (solely as set forth in Section 1.4 Sublicensing), non-exclusive license (the “License”) to use the Telerik computer software identified as Telerik Open Access ORM Free Edition and any updates, upgrades, modifications and error corrections thereto provided to Licensee (the “Programs”) and any accompanying documentation (the “Documentation”, together with the Programs, collectively the “Software”) solely as specified in this Agreement.  You are granted a Free Developer License pursuant to Section 1.5.  This License does not grant You a license or any rights to the “2007 Microsoft Office System User Interface” and You must contact Microsoft directly to obtain such a license.  Any and all rights in the Software not expressly granted to You as part of the License hereunder are reserved in all respects by Telerik.

1.2 Scope of Use.  The Software is licensed, not sold, on a per-seat basis.  You may make copies on more than one computer, as long as the use of the Software is by the same authorized individual (a Licensed Developer”).  The Software is in “use” on a computer when it is loaded into temporary memory (i.e.  RAM) or installed into permanent memory (e.g.  hard disk or other storage device) of that computer for development purposes.  You also may access and use the Software for purposes other than development (e.g., testing purposes).  You may also embed copies of the Programs in Your own proprietary software applications that You develop, license and distribute to Your own end-user licensees (“Authorized End-Users”), solely in accordance with the requirements set forth in Section 1.4 below.  

1.3 Redistribution Rights.

1.3.1 Subject to the terms of this Agreement, You are granted a limited license to redistribute the Software solely as part of bundled software solutions for internal company use, hosted applications, commercial solutions deployed at Your Authorized End-Users sites, or shrink-wrapped software offerings in which the Software is integrated (collectively “Integrated Products”).  “Integrated Products”, as defined herein, are limited to those software solutions which: (i) are developed by Your Licensed Developer; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Software; and (iii) are not commercial alternatives for, or competitive in the marketplace with, the Software or any components of the Software.

1.3.2 The forgoing license to redistribute the Software is conditioned upon the following:

1.3.3 You must ensure that the Software is not distributed in any form that allows it to be reused by any application other than Your solution.

1.3.4 You must prohibit Your Authorized End-Users from using the Software independently from Your Integrated Products, or from decompiling, reverse engineering or otherwise seeking to discover the source code of the Software.  For use of the Software in design-time (i.e.  within a development environment such as Microsoft Visual Studio) Your Authorized End-Users need to download Free Developer Licenses from Telerik.  

1.3.5 You must include a valid copyright message in Your Integrated Products in a location viewable by Authorized End-Users (e.g.  “About” box) that will serve to protect Telerik’s copyright and other intellectual property rights in the Software.

1.4 Sublicensing.  Subject to the terms of this Agreement, You are granted a limited, non-transferable right to sublicense the Software’s use, in object code form only, solely to Your Authorized End-Users and solely in and as part of Your Integrated Products.  In no event are You allowed to sublicense the Software or its use (a) in any format other than in object form, (b) as a standalone product, or (c) as a part of any product other than Your Integrated Product.  Your end-user license agreement must: prohibit distribution of the Software by Your Authorized End Users; limit the liability of Your licensors or suppliers to the maximum extent permitted by applicable law; and prohibit any attempt to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Software.  Provided Your Authorized End-Users are in compliance with their license agreements with You, any sublicenses to use the Software granted by You to Your Authorized End-Users will survive any termination of this Agreement or the License set forth herein between You and Telerik.  You are not allowed to, and are expressly prohibited from, granting Your Authorized End-Users any right to further sublicense the Software.  

1.5 Free Developer License.  If You download a Free Developer License, then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, royalty-free, sublicenseable (solely as set forth in Section 1.4 Sublicensing), non-exclusive license to install, use, include with Integrated Products and redistribute the Software in executable, object code form only.

1.5.1 Support.  No dedicated technical support is provided with the Software. As part of Your License You are allowed to access the support resources offered by Telerik (documentation, Knowledge Base articles, forums) in its sole discretion.

1.5.2 Updates.  Service packs and major version updates are available in accordance with the terms set forth at www.telerik.com/support/technical-support-options.aspx. You may use the resulting upgraded product only in accordance with the terms of this license.

2. License Limitations

2.1 At no time may the Software be used for development purposes by other individuals than the Licensed Developer(s).  

2.2 The Software may not be distributed for use with Integrated Products other than those developed by You.  

2.3 The Software may not be distributed as part of Integrated Products that are derivative works of the Software or that have the same or substantially the same primary functionality as the Software.  

2.4 You are not allowed to resell, transfer, rent, lease, or sublicense the Software and Your associated rights except as provided in Section 1.4.  Under no circumstances shall You grant further redistribution rights to Authorized End-Users or redistribute any source code of the Software to any third party.

2.5 You may not use the Telerik product names, logos or trademarks to market Your Integrated Product.  

2.6 You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of Software that is provided to You in object code form only.

2.7 You are not allowed to use, copy, modify, or distribute copies of the Software and any accompanying documents except as expressly permitted in this Agreement.

3. Delivery

Telerik shall make a master copy of the Software available for download by Licensee.

4. Term and Termination

4.1 Term and Termination.  This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. The License granted hereunder shall last as long as You use the Software in compliance with the terms herein.  Unless otherwise prohibited by law, and without prejudice to Telerik’s other rights or remedies, Telerik shall have the right to terminate this Agreement and the License granted hereunder immediately if You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Telerik. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use and distribution of the Software; provided, however, that any sublicenses granted to Your Authorized End-Users in accordance with Section 2 shall survive such termination. You must also destroy (i) all copies of the Software not integrated into a live, functioning instance(s) of Your Integrated Product(s) already installed, implemented and deployed for Your Authorized End-User(s), and (ii) any product and company logos provided by Telerik in connection with this Agreement.

5. Product Discontinuance

Telerik reserves the right to discontinue the Software or any component of the Software, whether offered as a standalone product or solely as a component,, at any time.  However, Telerik is obligated to provide support in accordance with the terms set forth in this Agreement for  discontinued Software or components for a period of 1 (one) year after the date of discontinuance.  

6. Intellectual Property

All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Telerik that are used in connection with the Software are and shall at all times remain exclusively owned by Telerik and its licensors.  All title and intellectual property rights in and to the content that may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties.  This Agreement grants You no rights to use such content.

7. No Warranty

THE SOFTWARE IS LICENSED ‘AS IS’.  YOU BEAR THE RISK OF USING IT. TELERIK GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS.  YOU MAY HAVE ADDITONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE.  TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, TELERIK EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICLUAR PURPOSE AND NON-INFRINGMENT.

8. Limitation of Liability

To the maximum extent permitted by applicable law, in no event will Telerik be liable for any indirect, special, incidental, or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.  In any case, Telerik’s entire liability under any provision of this agreement shall not exceed $250 in the aggregate, notwithstanding any failure of essential purpose of any limited remedy.  Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not be applicable.  Telerik is not responsible for any liability arising out of content provided by Licensee or a third party that is accessed through the Software and/or any material linked through such content.  Any data included in the Software upon shipment from Telerik is for testing use only and Telerik hereby disclaims any and all liability arising therefrom.  The extent of Telerik’s liability for the limited warranty section shall be as set forth therein.

9. Indemnity

You agree to indemnify, hold harmless, and defend Telerik and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from the use or distribution of Your Integrated Product.  

10. Confidentiality

Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement.  However, neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party.  Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure.  Without limiting the foregoing, Licensee shall treat any source code for the Software as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without Telerik’s prior written permission.  Each party’s obligations under this Section 10 shall apply at all times during the term of this Agreement and for two (2) years following termination of this Agreement, provided, however, that obligations with respect to source code shall survive in perpetuity.

11. Governing Law

This License will be governed by the law of the Commonwealth of Massachusetts, U.S.A., without regard to the conflict of laws principles thereof.  The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.  If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof.  Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.

12. Entire Agreement

This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof.  Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties.

13. No Assignment

You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Telerik’s prior written consent.

14. Survival

Article 1. Sections 2.5, 2.6, 2.7, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive the expiration or termination of this Agreement.

15. Severability

If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
 YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS.  YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN TELERIK AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.

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