Subscriptions - In a Nutshell

Pervasive DataTools subscription-based licenses are offered as an alternative to expensive, perpetual licenses. The following is a brief summary of how our subscriptions work.

• These downloadable data tools are licensed to end-users only, and can be used only on data that belongs to either the registered end-user directly, or the organization employing the registered end-user. Consultants and organizations that provide data processing services should contact Pervasive Software for extended licensing options.
• Subscriptions are purchased, and licenses are provided via annual fees.
• Each product subscription includes a minimum and maximum subscription.
• Subscription fees are paid in advance, and are not refundable.
• A subscription may be renewed at any time.
• When a subscription expires, the product will not launch.
• The purchase of a subscription obligates Pervasive Software only to provide you with an electronic delivery system for the software product installation file and license file.
• Product support is free via the knowledge base, online help, and user forums only.

The Subscription terms above are neither a summary nor a substitute for the License Agreement. Please also read and understand the entire License Agreement prior to downloading or purchasing any of the Pervasive DataTools products.

LICENSE AGREEMENT

IMPORTANT - READ THIS LICENSE AGREEMENT (HEREAFTER "AGREEMENT") BEFORE CLICKING ON THE "ACCEPT" BUTTON, ENTERING "YES" IN RESPONSE TO THE ELECTRONIC LICENSE ACCEPTANCE INQUIRY, OR INSTALLING OR ELECTRONICALLY DOWNLOADING THE SOFTWARE. ANY OF THE ABOVE ACTIONS INDICATE ACCEPTANCE OF, AND LEGALLY BINDS YOUR COMPANY ("YOU" OR "LICENSEE"), AND PERVASIVE SOFTWARE, INC. ("PERVASIVE") TO THE TERMS AND CONDITIONS SET FORTH BELOW. THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THIS AGREEMENT. YOU ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD PROMPTLY RETURN ANY PACKAGE THAT WAS SENT TO YOU OR DELETE ANY DOWNLOADED FILES THAT CONTAIN THE SOFTWARE AND YOUR MONEY WILL BE REFUNDED (IF WITHIN 30 DAYS OF PURCHASE).

IN THE EVENT THERE IS A SEPARATE SIGNED AGREEMENT BETWEEN YOU AND PERVASIVE WHICH APPLIES TO THIS SOFTWARE THEN TO THE EXTENT OF A CONFLICT, THE SEPARATE SIGNED AGREEMENT WILL GOVERN.

This Agreement applies to the object code copy of the Pervasive software which accompanies this Agreement, any license key or keys, and any subsequent update you receive for the foregoing, together with all Documentation (collectively, the "Software"). Software may include design or development software, adaptors, connectors, agents, metadata and run-time software. "Documentation" means all documentation included with the Software and any other documentation made available by Pervasive to you for use in connection with the Software.

1. Grant of License. Subject to the terms and conditions of this Agreement, Pervasive hereby grants to you a non-exclusive, non-transferable license to use the Software subject to the following:

A. If you have licensed Software that is identified on the sales invoice, online or other order confirmation or signed order (collectively, "Order"), and/or on the media package or install screen as design or development software, then the following installation limitations shall apply unless the Order expressly sets forth other installation rights:

You may install the Software only in a single location on a hard disk or other storage device.

You may install the Software on a network server used only to install or run the Software over an internal network; however, you must acquire and dedicate a license for each individual who will use the Software.

You may install and use each licensed copy of the Software on one home or portable "Secondary" computer. However, another person may not use the Software on the Secondary computer at the same time the Software on the primary computer is being used.

B. If you have licensed Software that is identified on the Order or on the media package or install screen as deployment or runtime software, then the following installation limitations shall apply unless the Order expressly - sets forth other installation rights:

Each license of the deployment or runtime Software may be installed only on a single machine or network server. On multiple-CPU machines, the deployment or runtime Software may not be used concurrently on more CPUs than the number of CPUs specified on the media package or sales invoice. In the event you use any number of physical CPUs, the authorized number of CPUs under this Agreement will be determined based on the number of logical or virtual CPUs. Notwithstanding the foregoing, you may programmatically invoke the deployment or runtime Software from one or more other machines within your organization.

2. Backup and Copies. The following backup limitations shall apply unless the Order sets forth other backup rights:

You may make a reasonable number of copies of the Software only for archival backup and security reasons in order to protect your investment from loss.

You may not install copies of the Software for fail-over or disaster recovery without purchasing additional licenses for such purposes.

Unauthorized copying of either the Software or Documentation is expressly forbidden.

You may print copies of the documentation or any part thereof from the electronic Help included with your Software solely for your internal use.

3. Term and Termination.

A. If the Order does not specify a limited term license (i.e. perpetual):

This Agreement is effective from the date you accept this License and will remain in force until terminated. You may terminate this Agreement at any time by destroying the Documentation and the Software together with all copies and adaptations thereof. All fees paid hereunder are non-refundable.

B. If the Order specifies a limited term license (i.e., subscription):

Your subscription commences on the start date specified in the relevant sales invoice, order form or online order confirmation and continues for the subscription term specified therein. You may terminate this Agreement at any time by destroying the Documentation and the Software together with all copies and adaptations thereof, but in the event of such termination, the due date of all fees due Pervasive will automatically be accelerated so that they will become due and payable on the effective date of termination, even if other payment terms had been provided previously. All fees paid hereunder are non-refundable.

4. Copyright.

Title, ownership rights, and intellectual property rights in and to the Software and Documentation will remain in Pervasive or its suppliers. Copyright laws of the United States and International Treaty provisions protect the Software and Documentation. Except as expressly authorized in this Agreement, you agree not to use, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, create derivative works of, time share or dispose of the Software or Documentation or any part thereof. Pervasive retains ownership of the Software and Documentation and reserves all rights not expressly granted to you.

5. Distribution to Third Parties.

If you intend to embed runtime Software within any application for distribution to third parties, then you must (i) execute a distribution agreement with Pervasive; (ii) distribute the runtime Software only in conjunction with or as a part of your application; (iii) include an end-user license agreement with your application that grants a limited license to use the runtime Software and protects the intellectual property rights of Pervasive and its suppliers in the run-time Software; (iv) unless you or your sub-distributors have a separate written agreement with Pervasive to private-label the runtime portion of the application, include on the application's startup screen appropriate copyright notices; and (v) indemnify, hold harmless and defend Pervasive and its suppliers from and against any claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of your application.

6. Leasing/Rental Prohibited.

You may not directly or indirectly sublicense, lease or rent the Software for third party use without prior written approval of Pervasive. You may not use, access, or allow access to the Software in any manner to provide service bureau, ASP, time-sharing, or other computer services to third parties without prior written approval of Pervasive.

7. Protection of Software.

You agree to take all reasonable steps to protect the Software and Documentation from unauthorized copying or use. The Software source code represents and embodies trade secrets of Pervasive or its licensors. The source code and embodied trade secrets are not licensed to you and any modification or addition thereto, or deletion therefrom is strictly prohibited. You agree not to disassemble, decompile, or otherwise reverse engineer the Software in order to discover the source code or the trade secrets contained in the source code.

8. Assignment.

You may not assign or otherwise transfer in whole or in part or in any manner any rights, obligations, or any interest in or under this Agreement without Pervasive's prior written consent and any attempted assignment will be void. A merger or other acquisition by a third party will be treated as an assignment. Pervasive may, at any time and without your consent, assign all or a portion of its rights and duties under this Agreement.

9. Performance or Benchmark Testing.

You may not publish or otherwise disclose to any third party the results of any performance or benchmark tests of the Software without prior written approval of Pervasive.

10. Limited Warranty.

To the original licensee only, Pervasive warrants the media on which the Software is recorded and its accompanying printed materials to be free of defects in materials and workmanship for a period of 90 days from the date of purchase as evidenced by a copy of the receipt. If the licensee notifies Pervasive of defects in material or workmanship within the warranty period, then, as licensee's sole remedy and Pervasive's sole obligation and liability, Pervasive will replace the defective item(s).

If you receive pre-release or beta Software under this Agreement, such pre-release or Beta Software is provided "As Is" without warranty of any kind. Pervasive and its suppliers will not be liable for any damages relating to your use of such pre-release or beta Software. If Pervasive updates or upgrades the pre-release or beta Software and makes it generally available, then: (i) provided you have paid any applicable maintenance fees, if any, Pervasive will provide you with the applicable update or upgrade to the generally available version of the Software, and (ii) the limited warranty set forth above in this Agreement will apply to such generally available Software version commencing upon receipt of such version.

11. Disclaimer Of Warranty.

PERVASIVE LICENSES THE SOFTWARE AND DOCUMENTATION TO YOU UNDER THIS AGREEMENT SOLELY ON AN "AS IS" BASIS. EXCEPT AS PROVIDED IN SECTION 10, PERVASIVE MAKES NO OTHER REPRESENTATIONS, CONDITIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND DOCUMENTATION; PERVASIVE EXPRESSLY STATES AND YOU ACKNOWLEDGE THAT PERVASIVE DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, INCLUDING, FOR EXAMPLE, WITH RESPECT TO MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AMONG OTHERS.

12. High Risk Activities.

The Software is not fault-tolerant and is not designed, manufactured, or intended for use or resale as on-line control equipment in hazardous environments regarding fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Pervasive and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

13. Limitation of Liability.

PERVASIVE'S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION IS LIMITED TO THE TOTAL OF ALL PAYMENTS MADE BY YOU FOR THE SOFTWARE UNDER THIS AGREEMENT. IN NO EVENT WILL PERVASIVE OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER UNDER THEORY OF WARRANTY, TORT, PRODUCTS LIABILITY OR OTHERWISE.

14. Effect of Termination.

This Agreement will automatically terminate if you breach any of the terms and conditions of this Agreement. You agree to destroy the original and all copies of the Software and Documentation, or to return them to Pervasive upon termination of this license. Sections 3, 4, 6, 7, 9, 11, 12, 13, 14 and 15 of this Agreement will survive any termination hereof.

15. Miscellaneous.

15.1 Complete Understanding. This Agreement represents the complete agreement concerning the subject matter between you and Pervasive and supersedes all prior agreements and representations between you and Pervasive.

15.2 Modification. This Agreement may be amended only in writing executed by both parties. Any purchase order placed by you is accepted only upon your assent to the terms and conditions of this Agreement, and not those contained in your purchase order. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THIS AGREEMENT ABOUT THE SOFTWARE.

15.3 Governing Law. This Agreement is governed by the laws of the State of Texas (U.S.A.) exclusive of its choice of law provisions. This Agreement expressly excludes the United States Convention on Contracts for the International Sale of Goods.

15.4 Waiver. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of Pervasive. No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.

15.5 Audit. You agree to maintain sufficient records, logs, and other materials ("Records") sufficient to document that your use of the Software is in accordance with the terms of this Agreement. Pervasive may audit such Records upon reasonable notice.

15.6 Severability. If any provision in this Agreement is held invalid or unenforceable, that provision will be construed, limited, modified, or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.

15.7 Export Controls. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to any person or entity on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders, or the U.S. Commerce Department's Entity List of Missile, Nuclear, and Chemical and Biological Weapons Proliferators, or the U.S. Department of State's Foreign Terrorist Organization List. You agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of such country or on any such list. The Software may also be subject to U.S. laws and export regulations of the U.S. Government that require an explicit export license prior to any export or re-export of the Software. You agree to obtain any such explicit export license that may be required.

15.8 U.S. Government End Users. The Software is a "commercial item", as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212, and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Contractor/Manufacturer is Pervasive Software Inc., 12365 Riata Trace Parkway, Building B, Austin, Texas 78727.

15.9 Operating System. It is your responsibility to fully comply with applicable license agreements for any operating systems you may use with the Software.

15.10 English will be the controlling language of this Agreement.

Copyright (c) 2007 Pervasive Software Inc.