InterBase XE Software License and Support Agreement

By: Tim DelChiaro

Abstract: License Agreement (EULA) for the InterBase XE family of products

INTERBASE XE SERVER EDITION

INTERBASE XE DESKTOP EDITION

INTERBASE XE DEVELOPER EDITION

INTERBASE XE TOGO EDITION

Software License and Support Agreement

1. SCOPE. This Software License and Support Agreement ("Agreement") is a legal agreement between you (either an individual or an entity ("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 ("Products"), 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. If Licensee is evaluating Licensor software, only the provisions of Section 22 below will govern such evaluation.

2. LICENSE GRANT. Licensor grants to Licensee a non-exclusive, nontransferable, perpetual license (the "License") to install 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"). 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 or Territory while a user is traveling, is permitted.

Specific editions of the Product are subject to the license grants and additional restrictions found in sections 25, 26 and 27 of this document.

Certain editions of the Product may include ToolCloud and/or InstantOn features. Additional restrictions applicable to those features may be found in supplemental terms accompanying them.

3. TERM. This Agreement shall be effective on the date first accessed by Licensee.

4. 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.

5. 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 Licensor.

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.

6. SUPPORT, MAINTENANCE AND ENHANCEMENTS ("Support"). Licensee is entitled to the Support services defined below as part of an annual Support fee.

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: incident submission, case management and Product Releases.

6.2 SUPPORT. Support shall be applicable only to the Product licensed or sold under this Agreement for which Support fees have been paid. Support will not cover any adaptation or modification of the Product made by Licensee or any third party. Licensor may discontinue Support for any Product at any time provided that Major Releases will be covered for eighteen months after initial release. "Major Release" means a significant release containing new features or functionality and designated as an "upgrade" by Licensor. The email and phone support hours shall be as identified on the Licensor support website.

Support shall consist of:

(a) Make available a regional telephone number or other electronic support to Licensee in order for the Licensee to report Product issues and to receive assistance. Licensor will analyze the incident and verify the existence of the problem and provide direction and assistance in resolving the incident.; and

(b) Make available all updates, upgrades and other changes ("Releases") that Licensor, at its sole discretion, makes or adds to the Product and which Licensor furnishes, without charge, to other licensees of the Product that are enrolled in Support. Requests for Releases will only be honored during the support term. Physical media requires an additional charge.

6.4 TERMINATION OF SUPPORT. Licensee will pay Licensor the applicable Support fees net 30 days from the support effective date and thereafter 30 days prior to each renewal date. Licensee may cancel enrollment in Support upon written notice to Licensor at least thirty (30) days prior to the next Support Anniversary Date. If Licensee’s Support has lapsed, Licensee may renew by paying a reinstatement fee as determined by Licensor at its sole discretion. 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. 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. Thereafter Licensor reserves the right to change its then current published list prices for the Products and its charge for Support at any time prior to renewal. Any such change to Support shall not take effect until the completion of the then current support term.

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, or Licensee separately purchases an upgrade such modification or upgrade 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 have acquired an upgrade version of the Product (whether through support or purchase of a separate upgrade), 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. However, in order to facilitate version to version upgrade from an older InterBase version to one of these Products, Licensee may install and operate both the older version and the Product for a single period of 180 days while they are in development and test stage of a transition. 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. If licensee acquires a Network Named upgrade or Concurrent upgrade license which includes rights to older product versions, then Licensee must deactivate the upgraded license upon installation of the upgrade license provided that the product version(s) of the upgraded license are also included in the upgrade license.

7.        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. 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.

8.        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. Other than with respect to any indemnification hereunder, 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.

9. 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.

10. 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:

(a) Procure for Licensee the right to continue using the Product; or

(b) Modify or replace the Product with a compatible, functionally equivalent, non-infringing Product(s); or

(c) 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.

11. VERIFICATION. If you are entering into this Agreement as an entity other than an individual (e.g., as a corporation, a partnership, or other organization), 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.

12. 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.

13. 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 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 or (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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 ninety (90) days ("Evaluation Period") without 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 return the Software to Licensor in original condition. 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. Licensor does not warrant that the Products will operate without interruption or be error free.

Sections 8, 11, 12 and 21 of the Agreement shall be deemed incorporated by this reference in the Evaluation license granted under this Section 22.

23. 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 requiring 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"). Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

24 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 is licensed to Licensee under the terms of the applicable third party license agreement(s) set forth in the third party license files that accompanies the Product. Notwithstanding any of the terms in the Agreement, or any other agreement Licensee may have with Licensor, the terms of such third party license agreement(s) governs Licensee use of all Separately Licensed Code unless otherwise noted below.

Future Product updates or fixpacks may contain additional Separately Licensed Code. Such additional Separately Licensed Code and related licenses are listed in third party license files that accompanies the Product update or fixpack. Licensee acknowledge that Licensee have read and agree to the license agreements contained in the third party license files. If Licensee does not agree to the terms of these third party license agreements, Licensee may not use the Separately Licensed Code.

(a) Licensor and its 3rd party suppliers provide this Separately Licensed Code to Licensee WITHOUT WARRANTIES OF ANY KIND;

(b) Licensor ON BEHALF OF ITSELF AND ITS 3rd PARTY SUPPLIERS 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 to Licensee, and will not defend, indemnify, or hold Licensee harmless for any claims arising from or related to the Separately Licensed Code; and

(d) Licensor and its 3rd party suppliers are 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 Licensed Code:

OpenSSL 1.0.0

International Components for Unicode 3.4.1

25. EDITION SPECIFIC TERMS. The Products listed below are licensed under the following terms and conditions.

INTERBASE XE SERVER EDITION

INTERBASE XE DESKTOP EDITION

INTERBASE XE DEVELOPER EDITION

INTERBASE XE TOGO EDITION

25.1 LIMITED USE RIGHTS FOR OTHE R PROGRAMS. If Licensee acquired this Product as part of another program ("Principal Program"), Licensee received this Product only in support of the Principal Program and Licensee rights to use this Product will be limited by the license of the Principal Program. Please contact Licensor’s Sales Representative if Licensee wishes to acquire a separate license to this Product not limited by the Principal Program's license terms.

25.2 DESCRIPTION OF THE PRODUCT. The Product includes a number of components, including, (a) the InterBase Server Software ("Server Software"), (b) the InterBase Client Software ("Client Software"), (c) the InterBase Desktop Edition Software (“Desktop Edition Software"), (d) InterBase Strong Encryption Software (“Strong Encryption Software”) each of which is subject to the terms and conditions of this License Agreement.

25.3 LICENSE CERTIFICATE. For each license that Licensee acquires to use the Product, Licensee will be provided with a license certificate (a "License Certificate"), which may be either a certificate, the installation and licensing instructions, Licensee’s invoice, or an activation file and which may be provided to Licensee either with the Product media or separately by Licensor or its authorized distributors or resellers. The License Certificate will contain information specific to the edition of the Product that Licensee has licensed (InterBase), the type of license under which Licensee may use the Product and the number of licenses that Licensee has acquired. In order to activate and use the Product as set forth in this License Agreement, Licensee must follow the instructions when prompted by the Product.

Licensee may purchase any number of the applicable licenses, as described below, from Licensor and Licensee shall ensure that Licensee has the appropriate number and types of licenses for Licensee’s use of the Product. Licensee may only use the Product according to the terms of this License Agreement only while Licensee has a valid and subsisting License Certificate. For more information on which license types, License Certificates and/or License Keys, if any, should be included with the Product media Licensee should contact Licensor or a Licensor authorized reseller.

25.4 INTERBASE DESKTOP EDITION. The InterBase Desktop Edition Software includes an InterBase Desktop license ("IB Desktop Edition License") from Licensor. Under the IB Desktop Edition License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license (a) to install a single copy of the InterBase Desktop Edition Software on a single computer for Licensee’s internal data processing needs only; (b) execute a single instance of this installed copy on the computer on which it is installed; and (c) to access a single instance of this copy of the InterBase Desktop Edition Software in accordance with the licenses included in the IB Desktop Edition License or acquired by Licensee from Licensor.

The following licenses, described in detail below, are included in the IB Desktop Edition License: two Local User Desktop Licenses

25.5 INTERBASE SERVER EDITION. The InterBase Server Edition Software includes an InterBase Server license ("IB Server Edition License") from Licensor. Under the IB Server Edition License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license (a) to install a single copy of the IB Server Edition Software on a single computer for Licensee’s internal data processing needs only; (b) execute a single instance of this copy of the InterBase Server Edition Software on the computer on which it is installed; and (c) to access this instance of the InterBase Server Edition; (d) to install a single copy of the IB Server Edition Software on a single computer of the same operating system as the licensed server (under (a) above), for Idle Standby Server purposes only. Idle Standby Server can be configured with the IB Server software installed on it and may or may not be powered on, but it is idle in that it is not performing useful work, by, for example, receiving or sending data.

The following licenses, described in detail below, are included in the IB Server Edition License: one Server License, and one Simultaneous User License.

25.6 THIRD PARTY DISTRIBUTION. If Licensee wishes to distribute the Product to third parties as bundled with Licensee’s software application or installed on Licensee’s hardware, Licensee must contact Licensor and enter into an OEM license agreement.

25.7 CLIENT SOFTWARE. Licensee may use the Client Software only if Licensee has acquired either at least one Simultaneous User License or an Unlimited User License from Licensor.

25.8 INTERBASE DEVELOPER EDITION. The InterBase Developer Edition Software includes an InterBase Developer's license, as more fully set out in Section 26.6.

25.9 INTERBASE TOGO EDITION. The InterBase ToGo Edition includes a InterBase ToGo license, as more fully set out in Section 26.8.

26. LICENSE DESCRIPTIONS. This Section 26 lists the available license types that Licensor may grant with respect to the Product. Not all of these license types may be applicable to Licensee. A particular license type is applicable to Licensee only if it is included with the Product Licensee has licensed, as specified in Section 25, or Licensee has acquired additional licenses from Licensor. This Section 26 is for purposes of description and definition only, and does not make any license grant unless Licensee has acquired the particular license described and defined.

26.1 LOCAL USER DESKTOP LICENSE. Under each Local User Desktop License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to access the instance of the InterBase Desktop Edition Software by logging into the same computer on which the instance is executing and making up to 8 connections to the InterBase Desktop Edition Software.

26.2 ADDITIONAL CPU LICENSE. Every Server Edition License Certificate Licensee purchase grants Licensee the personal, nonexclusive, nontransferable and limited license to install and execute the Product in object code form on one computer with up to eight (8) cores for each License that has been purchased (the "Number of Licensed CPUs") as noted in Licensee’s License Certificate(s). To run Server Edition on more than eight (8) cores in the computer on which the Server Edition License is installed, Additional CPU licenses which authorize eight (8) cores can be added up to the maximum capacity of Licensee’s server. See a Licensor Sales Representative or visit our online store at http://www.embarcadero.com/online-stores.

Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to execute the applicable Product on the number of additional cores within the computer where the Product is installed as indicated on the applicable License Certificate.

26.3 ADDITIONAL USER LICENSE. InterBase Server Edition can be purchased inclusive with 1, 5, 10, 25, 50 or unlimited user licenses. Licensee may purchase the number of Additional Simultaneous User Licenses equal to the number of Simultaneous Users that will access the Product on the Server. Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to allow access to number of Simultaneous Users connecting to the computer where the Product is installed as indicated on the applicable License Certificate.

26.4 CPU LIMITS. Each Server Edition license supports up to eight (8) cores. Licensee may not install a single Server Edition license on multiple systems. Licensee may not install or use Server Edition on a system that has a capacity of more than eight (8) cores (except as noted in section 25.2 above); provided, however, that Licensee can install and use the Product on a SINGLE physical, logical, or virtual partition within a Server that has a capacity of more than eight (8) cores as long as the SINGLE partition in which the Product is installed does not have a capacity of more than eight (8) cores. Licensee may not install a single Server Edition on multiple partitions within a single Server.

Licensee may not install a single license on multiple systems. Licensee may not install or use Desktop Edition on a system that has a capacity of more than four cores; provided, however, that Licensee can install and use the Product on a SINGLE physical, logical, or virtual partition within a Server that has a capacity of more than four cores as long as the SINGLE partition in which the Product is installed does not have a capacity of more than four cores. Licensee may not install Desktop Edition on multiple partitions within a single Server.

Cores and the total number of Product copies used by Licensee and the manner in which such copies are used may not exceed or deviate from the type and number of licenses acquired by Licensee (i.e., number of cores).

26.3 SERVER LICENSE. Under the Server License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to use the Server Software on a single computer ("Server") for supporting Licensee’s internal data processing needs only. Licensee may install the Server Software on the hard disk of a Server for each Server License Licensee purchases. In order to connect any users to the Server Software Licensee must purchase as many Simultaneous User Licenses, as defined below, as Licensee has simultaneous users on that Server.

26.4 SIMULTANEOUS USER LICENSE. Under one Simultaneous User License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to install and use the Client Software on a single computer (a "Simultaneous User"). In order to install and use the Client Software on as many computer units as Licensee wishes, Licensee must first purchase an equal number of Simultaneous User Licenses to the number of computers on which Licensee wishes to install the Client Software. Each Simultaneous User License allows Licensee to use the Client Software to connect a single user to the Server Software. Licensee may use the Client Software to connect as many Simultaneous Users to the Server Software as Licensee has Simultaneous User Licenses for that server. (By way of example only, if Licensee wishes to install copies of the Client Software on fifteen (15) computers then Licensee must first purchase fifteen (15) Simultaneous End User Licenses; each of the simultaneous users that is using the Client Software pursuant to a Simultaneous User License may then connect to the Server Software for which Licensee has a Server Activation License) .

Any members of Licensee’s organization or users authorized by Licensee to install or use the Product shall be considered users accessing the InterBase Server in a manner other than as members of the general public through an unrestricted-access Internet application and such users must be licensed by Licensee as individual Simultaneous Users.

Licensee shall provide safeguards to ensure that the number of Simultaneous Users installing or using the Product does not exceed the total number of Simultaneous User Licenses Licensee has purchased. If the number of Simultaneous Users within Licensee’s organization or users authorized by Licensee installing or using the Product exceeds the number of Simultaneous User Licenses Licensee has purchased, Licensee shall purchase additional licenses from Licensor or its distributors or resellers to equal the number of Simultaneous Users within Licensee’s organization or users authorized by Licensee installing or using the Product.

If Licensee uses multiplexing or connection pooling software or hardware to reduce the number of users directly connected to the Server Software, the number of Simultaneous Users within Licensee’s organization or users authorized by Licensee installing or using the Product shall be measured as the number of distinct inputs to the multiplexing or connection pooling front end and Licensee shall purchase the equivalent number of Simultaneous User Licenses.

If any of Licensee’s users connect to the Server Software via an unrestricted-access Internet application Licensee must purchase an Unlimited User License from Licensor. For terms governing public access to an InterBase database from the Internet, see the section in this document entitled "Unlimited User License."

Regardless of system configuration Licensee uses, no individual Simultaneous User may make more than four simultaneous connections to the Server Software under one Simultaneous User License. If any such Simultaneous User requires more than four simultaneous connections to the Server Software Licensee must purchase an additional Simultaneous User License for such Simultaneous User to obtain the right to make an additional four connections.

Each Simultaneous User License contains a version number. Each Simultaneous User License allows Licensee to connect Client Software to the Server Software only if the Simultaneous User License has a major version number which is the same as the major version number of the Server Software. (The major version number is the integer to the left of the leftmost decimal point).

26.5 UNLIMITED USER LICENSE. Under the Unlimited User License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to install and use the Client Software on an unlimited number of computers. Each Unlimited User License is associated with a single Server License. Each Unlimited User License allows Licensee to use the Client Software to connect an unlimited number of users to the particular instance of the Server licensed under the Server License with which the Unlimited User License is associated.

Each Unlimited User License has a major version number which is the same as the major version number of the Server Software. (The major version number is the integer to the left of the leftmost decimal point.)

26.6 DEVELOPER'S LICENSE. Under the Developer's License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to install and execute the Product on a single computer, subject to the limitations of this section 26.6. The Developer's License is limited to use for development purposes only, using solely client applications executing on the same computer as the server, and grants no rights whatsoever for use for production purposes. For purposes of this section 26.6, "development purposes" means the purpose of executing the Product, alone or in conjunction with other programs or systems solely to evaluate the performance or operation of Product or the programs or systems, and "production purposes" means the purpose of executing the Product in conjunction with programs or systems where the results of the programs or systems are, directly or indirectly, used for business operations or relied upon for business decisions. When executing under a Developer's License, the Product is subject to limitations on the number of concurrent users, the number of simultaneous database connections and the duration for which the Product will execute, as further described in the accompanying documentation and/or README file.

26.7 STRONG ENCRYPTION LICENSE. Under the Strong Encryption License, Licensor grants Licensee the personal, nonexclusive, nontransferable and limited license to use the Strong Encryption functionality in conjunction with the individually licensed InterBase Server Edition, Desktop Edition or ToGo Edition Software. Each Strong Encryption License allows Licensee to use the strong encryption functionality with the particular instance of the Server, Desktop or ToGo software with which the Strong Encryption License is associated. The Strong Encryption License is subject to U.S. Commerce Department export restrictions as outlined in section 13 of this Agreement.

26.8 TOGO EDITION LICENSE. Under each ToGo Edition License, Embarcadero grants Licensee the personal, nonexclusive, nontransferable and limited license to access a single instance of the InterBase ToGo Edition from a single instance of an application running on the same computer or device on which the instance of InterBase ToGo Edition is executing.

27. PROGRAMS COMPILED WITH THE PRODUCT. Provided Licensee has obtained a Developer License, Licensee may write, compile and use Licensee’s own applications ("Application(s)") using the Product including the InterClient software, and Licensee may distribute and authorize third parties to distribute the Applications; provided, however, that (a) Licensee’s Application is a product which operates in conjunction with the Product, (b) Licensee does not use any of Licensor's or its licensors' or suppliers' name, logos or trademarks, or any names, logos or trademarks of any product of Licensor (including the Product) or its licensors or suppliers to market the Application or any of Licensee’s associated software product(s), (c) Licensee includes Licensor's copyright notice as part of the sign-on message for the Application or any of Licensee’s associated software product(s), (d) Licensee agree to indemnify, hold harmless, and defend Licensor and its licensors and suppliers from and against any claims or lawsuits, including attorney's fees, that arise out of Licensee’s writing, compiling, use or distribution of Licensee’s Application or any of Licensee’s associated software product(s), and (e) Licensee’s Application or any of Licensee’s associated program(s) is not merely a set or subset of the Product or any libraries or source code included with the Product. Licensee is not entitled to distribute any part of the Product with its Application(s) except for the InterClient software, without first entering into a separate OEM license agreement with Licensor.

Embarcadero Technologies

100 California Street

San Francisco, CA 94111

Phone: 415-834-3131

Server Response from: ETNASC01