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END USER LICENSE AGREEMENT
VERSION 2.2
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT ("AGREEMENT") CAREFULLY
BEFORE INSTALLING OR USING THE ACCOMPANYING SOFTWARE. BY INSTALLING OR
USING THE SOFTWARE OR RELATED DOCUMENTATION, YOU AGREE TO BE BOUND BY
THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE. IF YOU ARE ACCESSING THE
SOFTWARE ON BEHALF OF YOUR ORGANIZATION, YOU REPRESENT AND WARRANT THAT
YOU HAVE SUFFICIENT AUTHORITY TO BIND YOUR ORGANIZATION TO THIS
AGREEMENT.
USE AND RE-EXPORT OF THE SOFTWARE IS SUBJECT TO THE UNITED STATES EXPORT
CONTROL ADMINISTRATION REGULATIONS. THE SOFTWARE MAY NOT BE USED BY
UNLICENSED PERSONS OR ENTITIES, AND MAY NOT BE RE- EXPORTED TO ANOTHER
COUNTRY. SEE EXPORT ASSURANCE (CLAUSE 13) OF THIS LICENSE.
This is a legal agreement between you (or, if you are accessing the
software on behalf of your organization, your organization) ("You" or
"User") and the Transaction Processing Performance Council ("TPC"). This
Agreement states the terms and conditions upon which TPC offers to
license the Software, including, but not limited to, the source code,
scripts, executable programs, drivers, libraries and data files
associated with such programs, and modifications thereof (the
"Software"), and online, electronic or printed documentation
("Documentation," together with the Software, "Materials").
LICENSE
1. Definitions
"Executive Summary" shall mean a short summary of a TPC Benchmark Result
that shows the configuration, primary metrics, performance data, and
pricing details. The exact requirements for the Executive Summary are
defined in each TPC Benchmark Standard.
"Full Disclosure Report (FDR)" shall mean a document that describes The
TPC Benchmark Result in sufficient detail such that the Result could be
recreated. The exact requirements for the FDR are defined in each TPC
Benchmark Standard.
"TPC Benchmark Result (Result)" shall mean a performance test submitted
to the TPC attested to meet the requirements of a TPC Benchmark Standard
at the time of submission. A Result is documented by an Executive
Summary and, if required, a FDR.
"TPC Benchmark Standard" shall mean a TPC Benchmark Specification and
any associated code or binaries approved by the TPC. The various TPC
Benchmark Standards can be found at
http://www.tpc.org/information/current_specifications.asp.
"TPC Policies" shall mean the guiding principles for how the TPC
conducts its operations and business. The current TPC Policies can be
found at http://www.tpc.org/information/current_specifications.asp.
2. Ownership. The Materials are licensed, not sold, to You for use only
under the terms of this Agreement. As between You and TPC (and, to the
extent applicable, its licensors), TPC retains all rights, title and
interest to and ownership of the Materials and reserves all rights not
expressly granted to You.
3. License Grant. Subject to Your compliance in all material respects
with the terms and conditions of this Agreement, TPC grants You a
restricted, non-exclusive, revocable license to install and use the
Materials, but only as expressly permitted herein. You may only use the
Software on computer systems under Your direct control. You may download
multiple copies of the Materials and make verbatim copies of the
original of the Software so long as Your use of such copies complies
with the terms of this Agreement.
a. Use by Individual. If You are accessing the Materials as an
individual, only You (as an individual) may access and use the
Materials.
b. Use by Organization. If You are accessing the Materials on behalf of
Your organization, only You and those within Your organization may use
the Materials. Your organization must identify a contact person to TPC
and conduct communications with TPC through that contact person.
4. Restrictions. The following restrictions apply to all use of the
Materials by You.
a. General: You may not:
(1) use, copy, print, modify, adapt, create derivative works from,
market, deliver, rent, lease, sublicense, make, have made, assign,
pledge, transfer, sell, offer to sell, import, reproduce, distribute,
publicly perform, publicly display or otherwise grant rights to the
Materials, or any copy thereof, in whole or in part, except as expressly
permitted under this Agreement; or
(2) use the Materials in any way that does not comply with all
applicable laws and regulations.
b. Modification: You may modify the Software.
c. Public Disclosure: You may not publicly disclose any performance
results produced while using the Software except in the following
circumstances:
(1) as part of a TPC Benchmark Result. For purposes of this Agreement, a
"TPC Benchmark Result" is a performance test submitted to the TPC,
documented by a Full Disclosure Report and Executive Summary, claiming
to meet the requirements of an official TPC Benchmark Standard. You
agree that TPC Benchmark Results may only be published in accordance
with the TPC Policies. viewable at http: //www.tpc.org
(2) as part of an academic or research effort that does not imply or
state a marketing position
(3) any other use of the Software, provided that any performance results
must be clearly identified as not being comparable to TPC Benchmark
Results unless specifically authorized by TPC.
5. License Modification. Requests for modification of this license shall
be addressed to info@tpc.org. You may not remove or modify this license
without permission.
6. Copyright. The Materials are owned by TPC and/or its licensors, and
are protected by United States copyright laws and international treaty
provisions. You may not remove the copyright notice from the original or
any copy of the Materials, and You must apply the notice if You extract
part of the Materials not bearing a notice.
7. Use of Name. You acknowledge and agree that TPC owns all trademark
and trade name rights in the names, trademarks and logos used by TPC in
the Materials. User shall preserve any notices regarding such ownership.
User may only use such names, trademarks and logos in accordance with
the usage guidelines specified by the TPC Policies.
8. Merger or Integration. Any portion of the Materials merged into or
integrated with other software or documentation will continue to be
subject to the terms and conditions of this Agreement.
9. Limited Grants of Sublicense. You may distribute the Software as
provided or as modified as permitted under clause 4 b. of this
Agreement, provided You comply with all of the terms of this Agreement
and the following conditions:
a. If You distribute any portion of the Software in its original form
You may do so only under this Agreement by including a complete copy of
this Agreement with Your distribution, and if You distribute the
Software in modified form, You may only do so under a license that at a
minimum provides all of the protections and conditions of use contained
within this Agreement;
b. You must include on each copy of the Software that You distribute the
following legend in all caps, at the top of the label and license, and
in a font not less than 12 point and no less prominent than any other
printing: "THE TPC SOFTWARE IS AVAILABLE WITHOUT CHARGE FROM TPC.";
c. You must retain all copyright, patent, trademark, and attribution
notices that are present in the Software; and
d. You may not charge a fee for the distribution of this Software,
including any modifications permitted under clause 4.b.
10. Term and Termination.
a. Term. The license granted to You is effective until terminated.
b. Termination.
(1) By You. You may terminate this Agreement at any time by returning
the Materials (including any portions or copies thereof) to TPC or
providing written notice to the TPC that all copies of the Materials
within Your custody or control have been deleted or destroyed.
(2) By TPC. In the event You materially fail to comply with any term or
condition of this Agreement, and You fail to remedy such non-compliance
within 30 days after the receipt of notice to that effect, then TPC
shall have the right to terminate this Agreement immediately upon
written notice at the end of such 30-day period.
c. Effect of Termination. Termination of this Agreement in accordance
with this clause 10 will not terminate the rights of end users
sublicensed by You pursuant to this Agreement. Moreover, upon
termination and at TPC's written request, You agree to either (1) return
the Materials (including any portions or copies thereof) to TPC or (2)
immediately destroy all copies of the Materials within Your custody or
control and inform the TPC of the destruction of the Materials. Upon
termination, TPC may also enforce any rights provided by law. The
provisions of this Agreement that protect the proprietary rights of TPC
and its Licensors will continue in force after termination.
11. No Warranty; Materials Provided "As Is". TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, THE MATERIALS ARE PROVIDED "AS IS" AND WITH
ALL FAULTS, AND TPC (AND ITS LICENSORS) AND THE AUTHORS AND DEVELOPERS
OF THE MATERIALS HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND
CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS RELATING TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR
COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT, LACK OF VIRUSES,
LACK OF NEGLIGENCE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION,
CORRESPONDENCE TO DESCRIPTION OR NONINFRINGEMENT. USER RECOGNIZES THAT
THE MATERIALS ARE THE RESULT OF A COOPERATIVE, NON-PROFIT EFFORT AND
THAT TPC DOES NOT CONDUCT A TYPICAL BUSINESS. USER ACCEPTS THE MATERIALS
"AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED.
Without limitation, TPC (and its licensors) do not warrant that the
functions contained in the Software or Materials will meet Your
requirements or that the operation of the Software will be
uninterrupted, error-free or free from malicious code. For purposes of
this paragraph, "malicious code" means any program code designed to
contaminate other computer programs or computer data, consume computer
resources, modify, destroy, record, or transmit data, or in some other
fashion usurp the normal operation of the computer, computer system, or
computer network, including viruses, Trojan horses, droppers, worms,
logic bombs, and the like. TPC (and its licensors) shall not be liable
for the accuracy of any information provided by TPC or third-party
technical support personnel, or any damages caused, either directly or
indirectly, by acts taken or omissions made by You as a result of such
technical support.
You assume full responsibility for the selection of the Materials to
achieve Your intended results, and for the installation, use and results
obtained from the Materials. You also assume the entire risk as it
applies to the quality and performance of the Materials. Should the
Materials prove defective, You (and not TPC) assume the entire liability
of any and all necessary servicing, repair or correction. Some
countries/states do not allow the exclusion of implied warranties, so
the above exclusion may not apply to You. TPC (and its licensors)
further disclaims all warranties of any kind if the Materials were
customized, repackaged or altered in any way by any party other than TPC
(or its licensors).
12. Disclaimer of Liability. TPC (and its licensors) assumes no
liability with respect to the Materials, including liability for
infringement of intellectual property rights, negligence, or any other
liability. TPC is not aware of any infringement of copyright or patent
that may result from its grant of rights to User of the Materials. If
User receives any notice of infringement, such notice shall be
immediately communicated to TPC who will have sole discretion to take
action to evaluate the claim and, if practicable, modify the Materials
as necessary to avoid infringement. In the event that TPC determines
that the Materials cannot be modified to avoid such infringement (or any
other infringement claim communicated to TPC), TPC may terminate this
Agreement immediately. User shall suspend use of the Materials until
modifications to avoid claims of infringement have been completed. User
waives any claim against TPC in the event of such infringement claims by
others.
13. Export Assurance. Use and re-export of the Materials and related
technical information is subject to the Export Administration
Regulations (EAR) of the United States Department of Commerce. User
hereby agrees that User (a) assumes responsibility for compliance with
the EAR in its use of the Materials and technical information, and (b)
will not export, re-export, or otherwise disclose directly or
indirectly, the Materials, technical data, or any direct product of the
Materials or technical data in violation of the EAR.
14. Limitation of Remedies And Damages. IN NO EVENT WILL TPC OR ITS
LICENSORS OR LICENSEE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST
REVENUES OR LOST DATA ARISING FROM OR RELATING TO THE MATERIALS OR THIS
AGREEMENT, EVEN IF TPC OR ITS LICENSORS OR LICENSEE HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TPC'S OR ITS
LICENSORS' LIABILITY OR DAMAGES TO YOU OR ANY OTHER PERSON EVER EXCEED
U.S. ONE HUNDRED DOLLARS (US $100), REGARDLESS OF THE FORM OF THE CLAIM.
IN NO EVENT WILL LICENSEE'S LIABILITY OR DAMAGES TO TPC OR ANY OTHER
PERSON EVER EXCEED $1,000,000, REGARDLESS OF THE FORM OF THE CLAIM. Some
countries/states do not allow the limitation or exclusion of liability
for incidental or consequential damages, so the above limitation or
exclusion may not apply to You.
15. U.S. Government Restricted Rights. All Software and related
documentation are provided with restricted rights. Use, duplication or
disclosure by the U.S. Government is subject to restrictions as set
forth in subdivision (b)(3)(ii) of the Rights in Technical Data and
Computer Software Clause at 252.227-7013. If You are using the Software
outside of the United States, You will comply with the applicable local
laws of Your country, U.S. export control law, and the English version
of this Agreement.
16. Contractor/Manufacturer. The Contractor/Manufacturer for the
Software is:
Transaction Processing Performance Council
572B Ruger Street, P.O. Box 29920
San Francisco, CA 94129
17. General. This Agreement is binding on You as well as Your employees,
employers, contractors and agents, and on any successors and assignees.
This Agreement is governed by the laws of the State of California
(except to the extent federal law governs copyrights and trademarks)
without respect to any provisions of California law that would cause
application of the law of another state or country. The parties agree
that the United Nations Convention on Contracts for the International
Sale of Goods will not govern this Agreement. This Agreement is the
entire agreement between us regarding the subject matter hereof and
supersedes any other understandings or agreements with respect to the
Materials or the subject matter hereof. If any provision of this
Agreement is deemed invalid or unenforceable by any court having
jurisdiction, that particular provision will be deemed modified to the
extent necessary to make the provision valid and enforceable, and the
remaining provisions will remain in full force and effect.
SPECIAL PROVISIONS APPLICABLE TO THE EUROPEAN UNION
If You acquired the Materials in the European Union (EU), the following
provisions also apply to You. If there is any inconsistency between the
terms of the Software License Agreement set out earlier and the
following provisions, the following provisions shall take precedence.
1. Distribution. You may sublicense modifications of the Software
covered in this Agreement if they meet the requirements of clause 9
above.
2. Limited Warranty. EXCEPT AS STATED EARLIER IN THIS AGREEMENT, AND AS
PROVIDED UNDER THE HEADING "STATUTORY RIGHTS", THE SOFTWARE IS PROVIDED
AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, NONINFRINGEMENT,
OR CONDITIONS OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR
PURPOSE.
3. Limitation of Remedy and Damages. THE LIMITATIONS OF REMEDIES AND
DAMAGES IN THE SOFTWARE LICENSE AGREEMENT SHALL NOT APPLY TO PERSONAL
INJURY (INCLUDING DEATH) TO ANY PERSON CAUSED BY TPC'S NEGLIGENCE AND
ARE SUBJECT TO THE PROVISION SET OUT UNDER THE HEADING "STATUTORY
RIGHTS".
4. Statutory Rights: Irish law provides that certain conditions and
warranties may be implied in contracts for the sale of goods and in
contracts for the supply of services. Such conditions and warranties are
hereby excluded, to the extent such exclusion, in the context of this
transaction, is lawful under Irish law. Conversely, such conditions and
warranties, insofar as they may not be lawfully excluded, shall apply.
Accordingly nothing in this Agreement shall prejudice any rights that
You may enjoy by virtue of Sections 12, 13, 14 or 15 of the Irish Sale
of Goods Act 1893 (as amended).
5. General. This Agreement is governed by the laws of the Republic of
Ireland. The local language version of this agreement shall apply to
Materials acquired in the EU. This Agreement is the entire agreement
between us with respect to the subject matter hereof and You agree that
TPC will not have any liability for any untrue statement or
representation made by it, its agents or anyone else (whether innocently
or negligently) upon which You relied upon entering this Agreement,
unless such untrue statement or representation was made fraudulently.