BUSINESS
APPLICATIONS PERFORMANCE CORPORATION
(BAPCO®)
LICENSE AGREEMENT FOR BAPCO
BENCHMARK PRODUCT
The materials provided in this package (the
“Materials”) include a DVD-ROM containing a BAPCO benchmark program,
accompanying documentation, and pruned application software provided by third
party makers or suppliers (the “Application Vendors”). The benchmark program and pruned application
software are sometimes referred to together herein as the “Software.”
Read the terms and conditions of this License
Agreement (this “Agreement”) carefully before opening this package. By opening it, you indicate your acceptance
of, and agreement to, the terms of this Agreement. If you do not accept these terms, you must
promptly return the Materials in unopened form, and you will receive a refund
of your purchase price. This Agreement
represents the entire agreement between you and BAPCO concerning the
Materials. It supersedes any prior
proposal, representation or understanding between the parties.
1. Grant. BAPCO hereby grants, and USER hereby accepts,
a non-transferable, non-exclusive license to use the Materials subject to the
restrictions and conditions set forth below.
2. Copies
and Use. USER has entered into an
agreement with BAPCO or an authorized BAPCO reseller for purchase of the
license herein, specifying USER’s authorized license level as Individual, Small
Business, Business Site, or Enterprise Site, as the case may be. USER’s right to install, duplicate and use
the Software is defined according to the applicable license level, as follows:
□ Individual: USER shall not permit use of the
Software on more than one single computer workstation at any given time. USER may install the Software on more than
one computer workstation provided that all are located at a single physical
address of USER.
□ Small Business: USER may install and simultaneously
use the Software on more than one (but not more than 10) computer
workstation(s) provided that all are located at a single physical address of
USER.
□ Business Site: USER may install and simultaneously
use the Software on more than one computer workstation(s) provided that all are
located at a single physical address of USER.
□ Enterprise: USER may install and simultaneously use the
Software on an unlimited number of computer workstations of personnel of USER
and its wholly- (but not less than wholly-) owned subsidiary entities, and
across USER’s internal local- or
wide-area network, but only for use on the business premises of USER and its
wholly-owned subsidiaries.
USER may make one
backup copy of the Materials for USER’s archival use, exact and complete
without modification or merger with any other software (but the number of such
backup copies is not limited in the case of Enterprise Site license
level). Except as provided above, USER
shall not duplicate or install and shall not permit any third party to use or
copy the Materials or any copy thereof, and USER shall take reasonable
precautions to prevent its personnel from doing so. In the event of any unauthorized transfer or
copying, USER will pay BAPCO a penalty in the amount of one additional
Individual license fee for each instance of any such transfer or copy and any
derivative transfers or copies.
3. Scope
of Use. USER shall not: (i) modify, translate, reverse engineer,
decompile, disassemble, create derivative works based on, or duplicate or copy
the Materials, other than as provided in Section 2; (ii) sublicense,
loan, rent, transfer or grant any rights in the Materials to any third party;
(iii) remove any proprietary notices, labels or marks on the Materials; or
(iv) use the Materials for any purpose other than measuring the performance of
industry-standard computer hardware platforms.
4. Reports. In order to preserve the integrity of BAPCO’s
performance reporting standards, USER shall be bound by and shall comply with
the Execution Rules and Result Reporting Rules published by BAPCO for the
Materials (see www.bapco.com),
which are incorporated herein by this reference as though set forth in
full. These Rules prohibit
execution of the Software on modified software and reporting or publishing
of partial results, among other things.
5. Term. This Agreement and the license granted
hereunder take effect upon USER downloading or installing this Software, and
continue in effect until terminated upon the earlier to occur of: (a) thirty (30) days after BAPCO gives USER
written notice of USER’S breach or default of any provision of this Agreement,
which USER has not cured prior to the expiration of the thirty (30) day notice
period; (b) BAPCO availing USER of a subsequent release of the Materials;
or (c) return by USER of the Materials to BAPCO and destruction or permanent
removal of all copies thereof from all platforms of USER. USER shall in any case return all copies of
the Materials to BAPCO or destroy or permanently remove all copies of them from
all of USER’s platforms immediately upon such termination. Sections 3-13 of this Agreement nevertheless
shall survive any termination.
6. Use of Name. USER shall not use the Materials in conjunction with the publication
of USER’s performance results without the prior written consent of BAPCO, which
BAPCO will not unreasonably withhold.
BAPCO owns all trademarks and rights to trade names which includes the
mark “BAPCO.” In any publication of
performance results generated by the Materials, USER shall acknowledge BAPCO
ownership thereof as follows: “BAPCO® & [MOBILEMARK or SYSMARK
or WEBMARK (as applicable)] are registered trademarks of Business
Applications Performance Corporation.”
All other brand and product names appearing in the Materials are
trademarks or registered trademarks of the applicable Application Vendors.
7. Indemnity. USER shall indemnify and hold BAPCO and the
Application Vendors harmless from any claims, expenses or liabilities caused by
USER’s use of the Materials and any publication or use by USER of data arising
from its use of the Materials.
8. Disclaimer
of Warranties; Limitation of Liability.
In the case of any physical defect in the media containing the
Materials, at USER’s request and as USER’s sole remedy, BAPCO shall, upon
return of the Materials within ninety (90) days after shipment to USER, provide
a replacement copy without media defect.
BAPCO and the Application
Vendors disclaim and exclude all other warranties whatsoever, express or
implied, relating to the sale, use or performance of the Materials, including,
without limitation, any warranty of non-infringement, merchantability or
fitness for a particular use or purpose; and disclaim all other liability with
respect to the Materials, including without limitation any liability for
infringement of intellectual property rights or negligence. Except as set
In no event will BAPCO or
any Application Vendor be liable for any indirect, special, incidental or
consequential damages arising out of or in connection with this Agreement,
including the sale, use or performance of the Materials, even if BAPCO shall
have knowledge of the possibility of such potential. BAPCO’s total liability for any reason shall
not in any case exceed the amount of the purchase price received by BAPCO for
the Materials.
9. Notice
of Infringement Claims. If USER
receives any notice or claim of infringement, USER immediately shall
communicate such notice to BAPCO via electronic mail to: support@bapco.com.
10. Resale
and Export Restrictions. USER shall
not sell, resell, transfer, assign, lease, sublicense or convey this license or
the Materials or any right to use them (provided that USER’s rights hereunder
may transfer by operation of law in the case of acquisition of USER and all or
substantially all of USER’s business assets).
USER shall not in any case export or re-export the Materials except in
compliance with all applicable U.S. laws and regulations, including without
limitation the U.S. Export Administration Regulations, 15 C.F.R., and the
regulations promulgated by the U.S. Department of Treasury Office of Foreign
Assets Control, the U.S. Department of Commerce Bureau of Industry and
Security, and the U.S. Department of State Directorate of Defense Trade
Controls.
11. Governing
Law. This Agreement shall be
construed and governed in accordance with the laws of the State of
12. No
Waiver. The failure of a party to
take action to enforce a right hereunder shall not be deemed a waiver by that
party as to the subsequent enforcement of that right or any other rights
hereunder.
13. Benchmark Disclaimer. BAPCO disclaims any assurance that the
benchmark measurement generated by the Software will reflect USER’s system
values, preferences or priorities although BAPCO has strived to make the
Software a relevant and impartial measure for comparing general system
performance and/or battery life on widely used business applications.