APPWAVE

Software License and Support Agreement

SCOPE. This Software License and Support Agreement (“Agreement”) is a legal agreement between licensee (“Licensee”) and Embarcadero Technologies, Inc., a Delaware corporation with offices at 100 California Street, 12th Floor, San Francisco, California 94111, including its affiliates (“Licensor”). By downloading or unsealing Licensor’s software and/or documentation (“Product”), Licensee is agreeing to be bound by the terms of this Agreement. In the event of a conflict between the terms of this Agreement and any ordering document, the terms of this Agreement will govern and control. In the event of conflict between this Agreement and the license and support agreement provided with another Embarcadero product, the terms of this Agreement will govern and control. This document does not alter or supersede any agreements that Licensee may have with manufacturers of third-party products that may interoperate with the Product. If Licensee is evaluating certain features of the Product, the provisions of Section 22 below will govern such evaluation.
Licensee acknowledges and agrees that it will not use the AppWave technology to circumvent third party licensing mechanisms or schemes and will ensure that it has purchased the appropriate number of third party licenses (if required). It is Licensee’s obligation to review and comply with any third party licenses to ensure that its operation of such products does not violate the terms of those licenses. Licensee must obtain rights to the third party applications or other Embarcadero applications that it uses with AppWave separately.
LICENSE GRANT. Licensor grants to Licensee a non-exclusive, nontransferable, perpetual license (the “License”) to install and use this Product within the country (or in the case of a country within the European Union, within the European Union) specified by Licensee’s ship-to address provided by Licensee in the ordering documentation for the Product at the time of purchase (“Licensed Country”) and solely to enable the management and operation of Licensor’s Windows PC-based software applications (“Apps”) that have been internally-developed (“Custom Apps”), or licensed by a third-party software provider (“Third-Party Apps”), or licensed by Embarcadero (“Embarcadero Apps”), or free or promotional apps made available by Embarcadero to operate with the Product (“Free Apps”), as specified in the purchase document, in accordance with the terms of such license(s), in the following manner:
Licensee may install the Product on a network within the Licensed Country to be used on different computers for up to the number of authorized Apps, and by up to the number of authorized users for which Licensee has purchased a license, provided that the Product is accessed and used only in the Licensed Country. In addition the AppWave Browser or any licensed Apps may not be used by users located outside of the Licensed Country.
Except where prohibited by applicable law, transfer of the Product into a country (or in the case of the European Union, outside the EU) not identified on the ordering documentation at the time of purchase, is prohibited and will void the license. Temporary usage of a Product outside the Licensed Country not to exceed 30 days while a user is traveling, is permitted.
Licensee usage of the type of App and certain Product features may be subject to additional licensing terms identified in Section 2 (a) – (f). Please look to the ordering document for the specific licenses licensed.

If Licensee is a system integrator, Licensee may use the products to provide services to Licensee’s end user customers, provided that the products are not installed on the end user customer machine, but only on the system integrator machine. The end user customer receives no rights to use the products or benefit from the support provided herein or the terms and conditions of this Agreement, unless the system integrator has entered into a separate agreement with Embarcadero to resell the Product to end users.

Additional Specific Product Version Licensing Terms

a) AppWave for Embarcadero Apps:
If Licensee has purchased an Embarcadero App that contains AppWave, Licensee may use AppWave to run the purchased Embarcadero App. The license agreement and the license types purchased (concurrent, named user, work station) that accompanies the Embarcadero App, applies to Licensee’s use of the Embarcadero App.
The ability to run an Embarcadero App inside of AppWave is a licensed feature, included in All-Access, and to special editions of Embarcadero products licensed in conjunction with AppWave (as noted in the purchasing document by the words “AppWave” or “ToolCloud”, or the abbreviation “TC”) and under the “XE” brand moniker. Each Product license grants Licensee the right to run those Embarcadero Apps with the AppWave technology, for only that specific Embarcadero App license and no other. The right to run an Embarcadero App in conjunction with updated versions of Product is subject to an active maintenance contract for the Embarcadero App.

Licensee may be provided access to earlier versions of Embarcadero Apps. In such cases, Licensee may install and/or use such earlier versions of products subject to the terms, conditions in those agreements. In addition the end user only has one license regardless of number of earlier versions provided and may not transfer the earlier version license to another user. Embarcadero is not obligated to supply earlier versions to Licensee, or to provide Support for those earlier versions.

Licensees of All-Access hereby agree to the terms of Addendum A.

b) AppWave for Third-Party Apps:

If Licensee has purchased a specific AppWave for Third-Party App license, then Licensee may use the Product to run a specified Third-Party App, as specified in the Purchasing Document. Embarcadero does not grant a license to the Third-Party App which must be obtained separately. For each AppWave for Third Party license purchased, the Licensee may run one instance of the identified third party application in conjunction with Product, in accordance with the third party application’s licensing terms, where “instance” refers to a Third-Party App running on any single user’s desktop at one time, in accordance with any third-party license terms. Licensee may only access and use Product with the specified third party application that corresponds to the AppWave for Third-Party Apps license.
Licensee may run any current or prior version of the third party application, provided however, that Embarcadero does not warrant that older versions of the third party application will operate with the Product. The right to run a Third-Party App with updated versions of Product is subject to an active maintenance contract. The right to run newer versions of a Third-Party App with the Product is also subject to an active AppWave for Third-Party App maintenance contract.
An AppWave for Third-Party Apps license does not include the right to master or run Custom Apps.

c) AppWave for Custom Apps:

If Licensee has purchased an AppWave for Custom App license, then Licensee may use the Product to run a Custom App. For each AppWave for Custom Apps license purchased, the Licensee may use the Product to run one instance of a Custom Application, where “Instance” refers to a Custom App running on any single user’s desktop at one time. AppWave for Custom Apps licenses are sold as concurrent, and are tied neither to a specific app nor to a specific user, except while the Custom App is running. Therefore Licensee may use the Product to run at any one time the total number of Custom Apps for which it has purchased the number of Custom Apps licenses from Embarcadero. Custom Apps means an application developed by or for Licensee and does not include Embarcadero Apps, nor Third-Party Apps for which Embarcadero offers for sale as AppWave for Third-Party Apps. Embarcadero does not grant a license to the Custom App which must be obtained separately
The right to run Custom Apps in conjunction with updated versions of the Product is subject to an active AppWave for Custom Apps maintenance contract.

Embarcadero does not warrant that the AppWave for Custom Apps Product will successfully master every software application. Licensee represents that in the case of AppWave for Custom Applications, they have used the evaluation version to use the intended third party product in conjunction with Product and are satisfied with the performance.
An AppWave for Custom Apps license does not include the right to master or run apps for which Embarcadero offers an AppWave for Third-Party license. Customer acknowledges that in the future Embarcadero may elect to offer and Embarcadero may require Licensee to purchased AppWave for Third-Party for additional capacity.

d) Free Apps:
Licensor may at its discretion offer Free Apps in conjunction with the Product, which may be either promotional, or free Apps made available by Embarcadero, including Free Apps from the AppWave Store, and distributed with or separately from the Product. Licensee hereby agrees that such Free Apps are provided without Support, and that Product functionality for use with the Free Apps may be functionally restricted, and that Licensor may at any time and at its sole discretion, alter functional restrictions, cease to offer any new copies of a Free App altogether, or may reclassify a Free App as an Embarcadero App, Third-Party App, or a Custom App for purposes of future purchase.
As a condition to being allowed to use Free Apps in conjunction with the Product, Licensee may be asked for its consent to be contacted from time to time by us and/or one of Embarcadero’s affiliates, representatives or partners, by either email, postal mail, telephone and/or facsimile, to provide Licensee with the information about other products and/or services offered by Embarcadero or its affiliates or partners that Embarcadero or they think may be of interest to Licensee. In certain cases, Licensee’s contact information will be provided to the software provider for registration and/or marketing purposes. Licensee may opt out of such communication at any time by opting out of the use of Free Apps, and changing Licensee’s marketing preference to opt out. If you elect to opt out of communications from us, Embarcadero at its discretion may cease providing access to or use of the Free Apps.
AVAILABILITY AND LICENSEE’S USAGE OF THE FREE APPS IS SUBJECT TO LICENSEE’S COMPLIANCE WITH THE LICENSE AGREEMENT(S) THAT ACCOMPANIES THE FREE APP. THE FREE APPS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE FREE APPS ARE CONSIDERED SEPARATELY LICENSED CODE. THE TERMS OF (g) BELOW APPLY.

e) MyTools Client License:
The AppWave Enterprise MyTools client (“MyTools Client”) license enables the app broadcasting functionality included in Product, which is the ability for a Custom or Third-Party App to run AppWave Apps on demand without installation.
One MyTools Client license = is required for each user who accesses AppWave for Third Party or AppWave for Custom Applications. MyTools Client licenses are sold on a Concurrent basis, and not tied to a particular user, except while the MyTools Client license is running.

f) AppWave Browser:
The AppWave Browser portion of Product may be used to run any App for which Licensor has purchased rights to use with Product. In conjunction with such rights, Licensee’s licensed end users may (i) search, view, rate and review Apps even though they may not be licensed to run that App, (ii) access the AppWave administrative console via a supported Web Browser, or through the “Admin” tab in the AppWave Browser, or (iii) master applications and load them into AppWave, provided that Licensee has purchased the right to run these Apps. Notwithstanding the right to master applications, such Apps may only be run once the applicable AppWave run-time license has been purchased (e.g. a MyTools Client license, AppWave for Third-Party Apps license and/or AppWave for Custom Apps license).
g) Additional Terms Applicable Third Party Software
Certain components of the Product use or incorporate third-party software programs and/or libraries (but excluding Separately Licensed Code) ("Third-Party Software"). Licensee agrees that Licensor's third- party licensors and suppliers are intended third party beneficiaries of all terms and conditions of this Agreement intended to protect intellectual property rights in the Product (including the Third-Party Software) and limit certain uses thereof.

Separately Licensed Code
The provisions of this paragraph do not apply to the extent they are held to be invalid or unenforceable under the law that governs this Agreement. Each of the components listed below is considered "Separately Licensed Code". Separately Licensed Code are components of the Product that are provided under a separate license agreement. Separately Licensed Code is licensed under the terms of the applicable third party license agreement(s) set forth in the thirdpartylicense file that accompanies the Product. Notwithstanding any of the terms in this Agreement, or any other agreement Licensee may have with Licensor, the terms of such third party license agreement(s) governs the use of all Separately Licensed Code unless otherwise noted below.
Future Product updates or fixpacks may contain additional Separately Licensed Code. Licensee acknowledges that it has read and agreed to the license agreements contained in the thirdpartylicense file. If Licensee does not agree to the terms of these third party license agreements, Licensee may not use the Separately Licensed Code.
Note: Notwithstanding any of the terms in the third party license agreement, the Agreement, or any other agreement Licensee may have with Licensor:
(a) Licensor provides this Separately Licensed Code WITHOUT WARRANTIES OF ANY KIND;
(b) LICENSOR DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE, AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SEPARATELY LICENSED CODE;
(c) Licensor is not liable, and will not defend, indemnify, or hold Licensee harmless for any claims including but not limited to intellectual property infringement claims, arising from or related to the Separately Licensed Code; and
(d) Licensor is not liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages including, but not limited to, lost data, lost savings, and lost profits, with respect to the Separately Licensed Code.
The following are Separately License Code:
Free Apps and software identified in the file called: thirdpartylicense
TERM. This Agreement shall be effective on the date first accessed by Licensee.
TERMINATION. Licensor may immediately terminate this Agreement without further obligation or liability: (a) with respect to a License, if Licensee fails to pay the licensee fee due for the License hereunder and continues to be delinquent for a period of thirty (30) days after the last day on which payment is due, (b) if a petition alleging insolvency is filed by or against Licensee and not stayed within 60 days, or a receiver is appointed for any part of Licensee’s business, or its assets are assigned for the benefit of creditors; or (c) if Licensee commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice by Licensor of such breach. The termination of this Agreement shall not affect: (i) the obligation of either party pursuant to any License which has not been terminated, and which shall therefore remain in effect in accordance with its terms; or (ii) the survival of the representations and warranties contained herein. Within 60 days of the termination of any License, Licensee shall return to Licensor the terminated Product and all related documentation, and copies thereof. Licensee shall promptly certify in writing to Licensor that all copies of the Product have been removed from each computer upon which the Product was installed, and that any copies not returned have been destroyed.
TITLE AND PROPRIETARY INFORMATION.
5.1 TITLE AND COPYRIGHT. Licensor represents and warrants that it has the full rights to license the Product to Licensee and to perform its obligations under this Agreement. All title and copyrights and other industrial, intellectual and marketing rights in and to the Product, including but not limited to all modifications thereto made by or for any person, are owned by Licensor and/or its affiliates and licensors, and are protected by both United States copyright law and applicable international copyright treaties. Licensee agrees not to claim or assert title to or ownership of the Product. Except as expressly set forth herein, Licensee may copy the Product only for backup or archival purposes, and for no other purpose. Licensee will not remove or alter any copyright or proprietary notice from copies of the Product, and copies made by or for Licensee shall bear all copyright, trade secret, trademark and any other intellectual property right notices on the original copies. Title and all risk of loss to Licensor hardware components (“Hardware”) purchased by Licensee under a separate ordering document shall pass to Licensee upon delivery to a common carrier, FOB Licensor’s facility, and shall be deemed accepted at that time. All rights not specifically granted to licensee herein are retained by Embarcadero.
5.2 RESTRICTIONS. Licensee acknowledges and agrees that the Product contains valuable trade secrets of Licensor and/or its affiliates and licensors, and that this Agreement establishes a confidential relationship between the parties with respect to this information. Subject to applicable law, Licensee agrees (a) not to decompile, disassemble, reverse engineer or otherwise attempt to derive the Product source code from object code, except to the extent expressly permitted by applicable law or treaty despite this limitation; (b) not to sell, rent, lease, license, sublicense, display, modify, time share, outsource or otherwise transfer the Product to, or permit the use of the Product by, any third party; and (c) to preserve the confidential nature of the proprietary and trade secret information by retaining and using the Product in trust and confidence, solely for its internal use, and using the degree of care and protection that Licensee would use for its own information of similar importance, but in no event less than a reasonable degree of care and protection, to prevent the unauthorized use, copying, publication or dissemination of the Product and Licensor’s confidential information learned from Licensee’s use of the Product. Licensee will not export or re-export the Product without both the written consent of Licensor and the appropriate U.S. and/ or foreign government license(s) or license exception(s). Licensor shall have the right to seek injunctive relief against any actual or threatened violation of these restrictions, in addition to any other available remedies. Additional restrictions may apply to certain files, programs or data supplied by third parties and embedded in the Product; consult the Product installation instructions or release notes for details. Licensee agrees to promptly report to Licensor any violations of these provisions by Licensee’s employees, consultants or agents of which Licensee is aware.
SUPPORT, MAINTENANCE AND ENHANCEMENTS (“Support”). Licensee is entitled to the Support services defined below as part of an annual Support fee.

Support for Custom Apps and Third Party Apps comes in three levels as follows
Tiers are defined under AppWave Support Terms at: http://www.embarcadero.com/product-license-and-support-terms

6.1 ELECTRONIC SERVICES. To the extent that electronic services are available, Licensee may electronically access, at no charge, Support services which will be available twenty four (24) hours a day, seven (7) days per week. Such electronic services may include, but are not limited to: user forums, Product-specific information, hints and tips; bug fix retrieval via the Internet or World Wide Web access; Product maintenance and demonstration code retrieval via a WAN-accessible FTP server; and access to a problem resolution database via the Licensor customer support system.

6.2 SUPPORT. Support shall be applicable only to the Product licensed or sold under this Agreement for which Support fees have been paid. In the United States and Canada, Support is provided from 6:00 AM through 6:00 PM PST Monday through Friday, excluding United States federal holidays.
Embarcadero only provides support for the AppWave product. It does not provide support for the product that runs in AppWave. It is Licensee’s obligation to determine if use of the AppWave technology impacts any support contract Licensee may have with third party software suppliers.

6.4 TERMINATION OF SUPPORT. Licensee may cancel enrollment in Support upon written notice to Licensor at least (30) days prior to the next Support Anniversary Date. If Licensee has terminated its enrollment in Support, Licensee may re-enroll by paying a reinstatement fee consisting of all Support fees due for the period during which Licensee was not enrolled in Support. In addition, Licensee must pay the annual charge for Support for the next year in advance. Such reinstatement date shall then be considered the Support Anniversary Date. Licensee agrees not to modify the Product without the prior written approval of Licensor. Unapproved alterations to the Product shall void any obligation by Licensor to provide Support for the Product, pursuant to this Section 6, during the warranty period and any subsequent period in which Licensee is enrolled in Support.

6.5 CHANGE OF SUPPORT FEES. Licensor reserves the right to change its then current published list prices for the Products and its charge for Support at any time upon thirty (30) days written notice to Licensee. Any such change to Support shall not take effect until the completion of the then current support term. Notwithstanding the foregoing, for new license contracts, the support services fee quoted for the initial order period will be the basis for the renewal fee in the two subsequent years, subject to price increases not to exceed 5% per annum.

6.6 SERVICES; UPDATES; PRODUCT CHANGES. Licensor is not required under this Agreement to provide any installation, training or other services to licensee. Such services, if available, must be purchased separately. If Licensee purchases support and Licensor provides licensee with a new release, error correction, update, upgrade or other modification to the Product, such modification will be deemed part of the Product, and subject to the terms of this License, unless the modification is expressly provided subject to a separate license agreement. If licensee has acquired an upgrade version of the Product, such upgrade constitutes a single Product together with the copy of the Product that licensee upgraded. This means that, although licensee may have two sets of Product media and/or two license keys, licensee still has only one license. Therefore, licensee may not transfer the original copy of the Product or license key to any other party or user. Licensor reserves the right at any time not to release or to discontinue release of any Product and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Product.
PAYMENT SCHEDULE. Payment for all License and Support fees shall be due thirty (30) following receipt by Licensee of an invoice by Licensor specifying the amounts due, unless otherwise set forth in an ordering document accepted by Licensor in writing. All fees are nonrefundable. Licensor shall invoice Licensee for the initial Support fees upon the initial order of the licensed Products (the “Support Anniversary Date”). Sixty (60) days prior to each annual Support Anniversary Date of the licensed Products, Licensor shall invoice Licensee the then-current fee for the next year of Support.
LIMITED WARRANTY AND CONDITIONS. Licensor warrants and conditions for a period of sixty (60) days that the media on which the Product is furnished will be, under normal use, free from defects in material and workmanship. Licensor also warrants that the Product will perform in all material respects with the operating specifications contained in the accompanying Product documentation, for a period of sixty (60) days from the date of shipment. Licensor’s entire liability and Licensee’s exclusive remedy under this provision will be for Licensor to use commercially reasonable efforts to remedy defects covered by this warranty and condition within a reasonable period of time or, at Licensor’s option, either to replace the defective Product or to refund the amount paid by Licensee to license the use of the Product. Licensor does not warrant or condition that the operation of the Product will be uninterrupted or error free or that all software defects can be corrected. This warranty and condition shall not apply if (a) the Product is not used in accordance with applicable documentation; (b) Product defect has been caused by Licensee’s malfunctioning equipment; or (c) Licensee has made modifications to the Product not expressly authorized in writing by Licensor. No employee, agent, or representative of Licensor has the authority to bind Licensor to any oral representations, warranties or conditions concerning the Product. Any written representation, warranty or condition not expressly contained in this Agreement shall not be enforceable.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, REGARDING THIS AGREEMENT OR ANY PRODUCT (S) LICENSED HEREUNDER.
LIMITATION OF LIABILITY. Neither Licensor nor Licensee shall be liable to the other party for consequential, indirect, incidental, exemplary, special or punitive damages from any cause, whether in contract, tort (including negligence) or otherwise, arising out of or in any way connected with the design, manufacture, sale, support or use of the Product. Except as provided in Section 10 below, in no event shall Licensor’s or Licensee's liability for direct damages resulting from the use of the Product exceed the amount paid by the Licensee to license the use of the Product.
INDEMNIFICATION FOR INFRINGEMENT. Licensor will defend or settle, at its own expense, any claim against Licensee asserting a patent, copyright, trademark, trade secret or proprietary right violation which concerns the Product used within the scope of the License hereunder. Licensor shall indemnify Licensee against any loss, expense or liability including reasonable attorney's fees from any damages alleged against Licensee. However, Licensee must promptly notify Licensor in writing after Licensee first receives notice of any such claim, action or allegation of infringement and, Licensor shall have sole control of the defense of any action and all negotiations for its settlement or compromise, with the reasonable assistance of Licensee. Licensor shall not be liable for any costs or expenditures incurred by Licensee without Licensor’s prior written consent. If an injunction or order is obtained against Licensee’s use of the Product by reason of the allegations of infringement, or if in Licensor’s or Licensee's opinion the Product is likely to become the subject of a claim of infringement, Licensor shall, at its expense:
1. Procure for Licensee the right to continue using the Product; or
2. Modify or replace the Product with a compatible, functionally equivalent, non-infringing Product(s); or
3. If neither (a) nor (b) is reasonably practical in Licensor’s judgment, remove the Product and issue Licensee a pro rata credit based upon the License fees paid for the Product prorated over a thirty-six (36) month period from the date of shipment of the Product. Thereafter, termination shall proceed in accordance with the terms of Section 4.
This Section 10 is Licensor’s sole liability and Licensee’s exclusive remedy in the event of intellectual property infringement of any kind.
VERIFICATION. Licensor may, at its expense, audit the number of copies of the Product in use by Licensee and the designated CPU(s) on which the Product is installed. Any such audit shall be conducted during regular business hours at Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals that LICENSEE has underpaid fees to Licensor, Licensee shall be invoiced for such underpaid fees (based on the list prices in effect at the time the audit is completed); and if the underpaid fees exceed 5% of the License fees already paid, then Licensee shall also pay Licensor the reasonable costs of conducting the audit.
ASSIGNMENT. Neither this Agreement nor any of Licensee’s rights, licenses or obligations hereunder may be assigned or delegated by Licensee to any third party, including without limitation in connection with a merger, acquisition, reorganization, outsourcing, change of control or under any other circumstance. Any such purported assignment or delegation shall be void and of no effect and shall constitute an incurable breach of this Agreement resulting in the automatic termination of this Agreement and all rights and licenses granted to Licensee hereunder.
U.S. GOVERNMENT RESTRICTED RIGHTS; EXPORT COMPLIANCE. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in FAR Section 52.227-14 Alt. III (g)(3), FAR Section 52.227-19, DFARS 252.227-7014 (b) or DFARS 227.7202, as amended from time to time. Contractor/Manufacturer is Embarcadero Technologies, Inc., 100 California Street, 12th Floor, San Francisco, CA 94111. Any contract notices should be sent to this address. Licensee may not download, use, transfer, export or re-export the Product, or any Apps obtained through or in conjunction with the Product, or mastered with Product, except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, Product may not be, downloaded, used, exported or re-exported (a) in or to (or by or to a national or resident of) any country then under U.S. economic embargo (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria), (b) or any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (c) to any person or entity on the U.S. Treasury Department's list of Specially Designated Nationals or on the U.S. Department of Commerce's Denied Persons List or Entity List. By downloading or using Products, Licensee represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list.
SEVERABILITY. Should any provision of this Agreement be determined to be invalid, ineffective, or unenforceable, under present or future laws, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
NOTICE. Notices to either party shall be in writing to the address indicated in this Agreement (or as later amended) and deemed effective when received, or twenty-four (24) hours following the date of the postmark, if sent by prepaid certified mail, return receipt requested.
REFERENCING. If applicable, Licensee agrees that Licensor may refer to the corporate name of Licensee as a customer of Licensor, both internally and in externally published media; any additional disclosure by Licensor with respect to Licensee shall be subject to the prior written approval of Licensee.
FORCE MAJEURE. Neither party will be in default of its obligations under this Agreement to the extent its performance is delayed or prevented by causes beyond its reasonable control, including but not limited to acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission failures, fire or labor disturbances. The party facing an event of force majeure shall use its commercially reasonable efforts in order to remedy that situation as well as to mitigate its effects.
WAIVER. The waiver by a party of one breach or default by another party under this Agreement will not constitute the waiver of any subsequent breach or default. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
SURVIVAL. In the event of expiration or termination of this Agreement for any reason, the provisions of Sections 1, 4, 5, 7-10 and 13-20 shall survive in accordance with their respective terms.
ENTIRE AGREEMENT. Licensee agrees that this is the complete and exclusive statement of the agreement between the parties, and supersedes all prior proposals and understandings, oral and written, relating to the subject matter of this Agreement.
GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of law principles. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
EVALUATION LICENSE. Licensor is the owner and provider of certain proprietary software and documentation that Licensee desires to have tested and evaluated on the terms and conditions of this Section 22 (“Software”). For a term not to exceed fourteen (14) days (“Evaluation Period”) unless extended with Licensor’s written authorization, the Software will be provided solely for evaluation purposes for Licensee’s own internal use (“Evaluation”) and Licensee is hereby granted a nontransferable, nonexclusive, limited license to operate and use the Software for such Evaluation. The Evaluation Period begins on the date Licensee downloads or unseals the Software. At the end of the Evaluation Period, Licensee shall cease using and shall remove the Software from its systems. This requirement applies to copies of the Software in all forms (partial and complete) on all types of media and computer memory and whether or not merged into other materials. Licensee agrees not to cause or permit the reverse engineering, disassembly, modification, translation or decompilation of the Software. Licensee shall not copy the Software, or write or develop any derivative software. Licensee shall not release the results of any Evaluation testing or other performance results of the Software conducted under this Section 22 to any third party without Licensor’s prior written consent for each such release.
The SOFTWARE provided for THIS EVALUATION IS DELIVERED "AS IS, WHERE IS" AND LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL warrantIES of any kind including warranties of merchantability AND fitness for a particular purpose. Embarcadero does not warrant that the Products will operate without interruption or be error free.

Addendum A:

Additional Terms for All-Access
These terms apply if Licensee has purchased All-Access. Each All-Access offering includes support and maintenance services for the specified membership term and the right to obtain and use one or more eligible Embarcadero products. Embarcadero may at its sole discretion add or remove particular software products or editions from All-Access, provided that if a particular product has been made available to Licensee, Licensee will have the right to continue to use that product; however, new versions of that product may no longer be provided. If Licensee’s All-Access membership expires, Licensee has a perpetual license in the software that it downloaded prior to expiration, however Licensee may no longer download or access additional copies of the software.

Regardless of the license type, and subject to the other restrictions of the particular license type, one user (concurrent, named or seat) may use any of the All-Access offering products per each All-Access pass purchased. Licensee will not allow All-Access products to be used by any individuals other than the users for whom Licensee has purchased a license to the particular All-Access offering.

If the license terms that accompany any of the All-Access products (the “EULA”) gives Licensee other rights that do not expressly conflict with this Agreement, Licensee also has those rights subject to any additional restrictions applicable to the rights that are indicated in such EULA. For example, the particular software product may contain redistributables and specific license rights and restrictions regarding those redistributables. If Licensee elects to exercise those rights contained in the EULA, Licensee’s rights shall be as defined in the EULA and subject to any restrictions contained in the EULA. In addition, the EULA for the particular product may contain additional license types and restrictions. These license types and restrictions also apply to Licensee’s usage and may require Licensee to purchase additional licenses to receive additional usage rights.

InterBase
InterBase (if included) may be installed on a separate machine, and is restricted to the user connection count specified by that level. User connections may not be pooled with other All-Access or standalone product entitlements.

Change Manager Professional
Change Manager Professional is restricted to 25 data sources per DBMS platform (up to 100 for 4 platforms) unless the All-Access Gold edition is purchased and in that event there are no data source restrictions.