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271 lines
18 KiB
271 lines
18 KiB
END USER LICENSE AGREEMENT
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VERSION 2.0
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READ THE TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”)
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CAREFULLY BEFORE INSTALLING OR USING THE ACCOMPANYING
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SOFTWARE. BY INSTALLING OR USING THE SOFTWARE OR RELATED
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DOCUMENTATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS
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AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT,
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DO NOT INSTALL OR USE THE SOFTWARE. IF YOU ARE ACCESSING THE
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SOFTWARE ON BEHALF OF YOUR ORGANIZATION, YOU REPRESENT AND
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WARRANT THAT YOU HAVE SUFFICIENT AUTHORITY TO BIND YOUR
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ORGANIZATION TO THIS AGREEMENT.
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USE AND RE-EXPORT OF THE SOFTWARE IS SUBJECT TO THE UNITED STATES
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EXPORT CONTROL ADMINISTRATION REGULATIONS. THE SOFTWARE MAY
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NOT BE USED BY UNLICENSED PERSONS OR ENTITIES, AND MAY NOT BE RE-
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EXPORTED TO ANOTHER COUNTRY. SEE EXPORT ASSURANCE (CLAUSE 15)
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OF THIS LICENSE.
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This is a legal agreement between you (or, if you are accessing the software on behalf of your
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organization, your organization) (“You” or “User”) and the Transaction Processing Performance
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Council (“TPC”). This Agreement states the terms and conditions upon which TPC offers to
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license the Software, including, but not limited to, the source code, scripts, executable programs,
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drivers, libraries and data files associated with such programs, and modifications thereof (the
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“Software”), and online, electronic or printed documentation (“Documentation,” together with
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the Software, “Materials”).
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The Software may contain proprietary third-party software which has been licensed to the TPC
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to bundle and distribute as part of the benchmark. Any third-party software is subject to the
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terms and conditions in its associated third-party license.
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LICENSE
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1. Definitions
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“Executive Summary” shall mean a short summary of a TPC Benchmark Result that shows the
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configuration, primary metrics, performance data, and pricing details. The exact requirements
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for the Executive Summary are defined in each TPC Benchmark Standard.
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“Full Disclosure Report (FDR)” shall mean a document that describes The TPC Benchmark
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Result in sufficient detail such that the Result could be recreated. The exact requirements for the
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FDR are defined in each TPC Benchmark Standard.
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“TPC Benchmark Result (Result)” shall mean a performance test submitted to the TPC
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attested to meet the requirements of a TPC Benchmark Standard at the time of submission. A
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Result is documented by an Executive Summary and, if required, a FDR
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“TPC Benchmark Standard” shall mean a TPC Benchmark Specification and any associated
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code or binaries approved by the TPC. The various TPC Benchmark Standards can be found
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at http://www.tpc.org/information/current_specifications.asp.
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“TPC Policies” shall mean the guiding principles for how the TPC conducts its operations and
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business. The current TPC Policies can be found at
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http://www.tpc.org/information/current_specifications.asp.
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2. Ownership. The Materials are licensed, not sold, to You for use only under the
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terms of this Agreement. As between You and TPC (and, to the extent applicable, its licensors),
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TPC retains all rights, title and interest to and ownership of the Materials and reserves all rights
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not expressly granted to You.
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3. License Grant. Subject to Your compliance in all material respects with the
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terms and conditions of this Agreement, TPC grants You a restricted, non-exclusive, revocable
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license to install and use the Materials, but only as expressly permitted herein. You may only
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use the Software on computer systems under Your direct control. You may download multiple
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copies of the Materials and make verbatim copies of the original of the Software so long as Your
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use of such copies complies with the terms of this Agreement.
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a. Use by Individual. If You are accessing the Materials as an individual,
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only You (as an individual) may access and use the Materials.
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b. Use by Organization. If You are accessing the Materials on behalf of Your
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organization, only You and those within Your organization may use the Materials. Your
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organization must identify a contact person to TPC and conduct communications with TPC
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through that contact person.
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4. Restrictions. The following restrictions apply to all use of the Materials by You.
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a. General: You may not: (i) use, copy, print, modify, adapt, create derivative
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works from, market, deliver, rent, lease, sublicense, make, have made, assign, pledge, transfer,
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sell, offer to sell, import, reproduce, distribute, publicly perform, publicly display or otherwise
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grant rights to the Materials, or any copy thereof, in whole or in part, except as expressly
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permitted under this Agreement; (ii) use the Materials in any way that does not comply with all
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applicable laws and regulations; or (iii) submit or contribute the Materials, or any part thereof, to
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any open source software project or as part of any third-party software or project without the
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express written consent of the TPC chair.
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b. Public Disclosure: You may not publicly disclose any performance results
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produced while using the Software except in the following circumstances:
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(1) as part of a TPC Benchmark Result. For purposes of this
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Agreement, a “TPC Benchmark Result” is a performance test submitted to the TPC, documented
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by a Full Disclosure Report and Executive Summary, claiming to meet the requirements of an
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official TPC Benchmark Standard. You agree that TPC Benchmark Results may only be
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published in accordance with the TPC Policies. viewable at http: //www.tpc.org
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(2) as part of an academic or research effort that does not imply or
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state a marketing position
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(3) any other use of the Software, provided that:
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(a) any performance results must be clearly identified as not
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being comparable to TPC Benchmark Results unless specifically authorized by TPC, and
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(b) You secure written permission from the TPC.
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5. License Modification. Requests for modification of this license shall be
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addressed to info@tpc.org. You may not remove or modify this license without permission.
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6. Copyright. The Materials are owned by TPC and/or its licensors, and are
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protected by United States copyright laws and international treaty provisions. You may not
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remove the copyright notice from the original or any copy of the Materials, and You must apply
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the notice if You extract part of the Materials not bearing a notice.
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7. Use of Name. You acknowledge and agree that TPC owns all trademark and trade
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name rights in the names, trademarks and logos used by TPC in the Materials. User shall
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preserve any notices regarding such ownership. User may only use such names, trademarks and
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logos in accordance with the usage guidelines specified by the TPC Policies.
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8. Merger or Integration. Any portion of the Materials merged into or integrated
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with other software or documentation will continue to be subject to the terms and conditions of
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this Agreement.
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9. Limited Grants of Sublicense. You may distribute the Software as provided or
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as modified as permitted under clause 5 of this Agreement, provided You comply with all of the
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terms of this Agreement and the following conditions:
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a. If You distribute any portion of the Software in its original form You may
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do so only under this Agreement by including a complete copy of this Agreement with Your
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distribution, and if You distribute the Software in modified form, You may only do so under a
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license that at a minimum provides all of the protections and conditions of use contained within
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this Agreement;
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b. You must include on each copy of the Software that You distribute the
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following legend in all caps, at the top of the label and license, and in a font not less than 12
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point and no less prominent than any other printing: “THE TPC SOFTWARE IS AVAILABLE
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WITHOUT CHARGE FROM TPC.”;
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c. You must retain all copyright, patent, trademark, and attribution notices
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that are present in the Software; and
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d. You may not generate revenue directly or indirectly (e.g., by charging
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service fees) for distribution of the Software or of any modifications permitted under clause 5.c.
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10. Term and Termination.
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a. Term. The license granted to You is effective until terminated.
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b. Termination.
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i. By You. You may terminate this Agreement at any time by
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returning the Materials (including any portions or copies thereof) to TPC or providing written
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notice to the TPC that all copies of the Materials within Your custody or control have been
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deleted or destroyed.
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ii. By TPC. In the event You materially fail to comply with any term
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or condition of this Agreement, and You fail to remedy such non-compliance within 30 days
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after the receipt of notice to that effect, then TPC shall have the right to terminate this Agreement
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immediately upon written notice at the end of such 30-day period.
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c. Effect of Termination. Termination of this Agreement in accordance with
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this clause 10 will not terminate the rights of end users sublicensed by You pursuant to this
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Agreement. Moreover, upon termination and at TPC’s written request, You agree to either (1)
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return the Materials (including any portions or copies thereof) to TPC or (2) immediately destroy
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all copies of the Materials within Your custody or control and inform the TPC of the destruction
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of the Materials. Upon termination, TPC may also enforce any rights provided by law. The
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provisions of this Agreement that protect the proprietary rights of TPC and its Licensors will
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continue in force after termination.
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11. No Warranty; Materials Provided “As Is”. TO THE MAXIMUM EXTENT
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PERMITTED BY APPLICABLE LAW, THE MATERIALS ARE PROVIDED “AS IS” AND
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WITH ALL FAULTS, AND TPC (AND ITS LICENSORS) AND THE AUTHORS AND
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DEVELOPERS OF THE MATERIALS HEREBY DISCLAIM ALL WARRANTIES,
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REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS, IMPLIED OR
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STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES,
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DUTIES OR CONDITIONS RELATING TO MERCHANTABILITY, FITNESS FOR A
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PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES,
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RESULTS, WORKMANLIKE EFFORT, LACK OF VIRUSES, LACK OF NEGLIGENCE,
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TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO
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DESCRIPTION OR NONINFRINGEMENT.
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USER RECOGNIZES THAT THE MATERIALS ARE THE RESULT OF A
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COOPERATIVE, NON-PROFIT EFFORT AND THAT TPC DOES NOT CONDUCT A
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TYPICAL BUSINESS. USER ACCEPTS THE MATERIALS “AS IS” AND WITHOUT ANY
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WARRANTY, EXPRESS OR IMPLIED.
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Without limitation, TPC (and its licensors) do not warrant that the functions contained in
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the Software or Materials will meet Your requirements or that the operation of the Software will
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be uninterrupted, error-free or free from malicious code. For purposes of this paragraph,
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“malicious code” means any program code designed to contaminate other computer programs or
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computer data, consume computer resources, modify, destroy, record, or transmit data, or in
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some other fashion usurp the normal operation of the computer, computer system, or computer
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network, including viruses, Trojan horses, droppers, worms, logic bombs, and the like.
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TPC (and its licensors) shall not be liable for the accuracy of any information provided
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by TPC or third-party technical support personnel, or any damages caused, either directly or
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indirectly, by acts taken or omissions made by You as a result of such technical support.
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You assume full responsibility for the selection of the Materials to achieve Your intended
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results, and for the installation, use and results obtained from the Materials. You also assume the
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entire risk as it applies to the quality and performance of the Materials. Should the Materials
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prove defective, You (and not TPC) assume the entire liability of any and all necessary servicing,
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repair or correction.
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Some countries/states do not allow the exclusion of implied warranties, so the above
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exclusion may not apply to You. TPC (and its licensors) further disclaims all warranties of any
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kind if the Materials were customized, repackaged or altered in any way by any party other than
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TPC (or its licensors).
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12. Disclaimer of Liability. TPC (and its licensors) assumes no liability with respect
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to the Materials, including liability for infringement of intellectual property rights, negligence, or
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any other liability. TPC is not aware of any infringement of copyright or patent that may result
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from its grant of rights to User of the Materials. If User receives any notice of infringement, such
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notice shall be immediately communicated to TPC who will have sole discretion to take action to
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evaluate the claim and, if practicable, modify the Materials as necessary to avoid infringement.
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In the event that TPC determines that the Materials cannot be modified to avoid such
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infringement (or any other infringement claim communicated to TPC), TPC may terminate this
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Agreement immediately. User shall suspend use of the Materials until modifications to avoid
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claims of infringement have been completed. User waives any claim against TPC in the event of
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such infringement claims by others.
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13. Export Assurance. Use and re-export of the Materials and related technical
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information is subject to the Export Administration Regulations (EAR) of the United States
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Department of Commerce. User hereby agrees that User (a) assumes responsibility for
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compliance with the EAR in its use of the Materials and technical information, and (b) will not
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export, re-export, or otherwise disclose directly or indirectly, the Materials, technical data, or any
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direct product of the Materials or technical data in violation of the EAR.
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14. Limitation of Remedies And Damages. IN NO EVENT WILL TPC OR ITS
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LICENSORS OR LICENSEE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
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OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST
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REVENUES OR LOST DATA ARISING FROM OR RELATING TO THE MATERIALS OR
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THIS AGREEMENT, EVEN IF TPC OR ITS LICENSORS OR LICENSEE HAVE BEEN
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ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TPC’S OR
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ITS LICENSORS’ LIABILITY OR DAMAGES TO YOU OR ANY OTHER PERSON EVER
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EXCEED U.S. ONE HUNDRED DOLLARS (US $100), REGARDLESS OF THE FORM OF
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THE CLAIM. IN NO EVENT WILL LICENSEE'S LIABILITY OR DAMAGES TO TPC OR
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ANY OTHER PERSON EVER EXCEED $1,000,000, REGARDLESS OF THE FORM OF
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THE CLAIM. Some countries/states do not allow the limitation or exclusion of liability for
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incidental or consequential damages, so the above limitation or exclusion may not apply to You.
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15. U.S. Government Restricted Rights. All Software and related documentation
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are provided with restricted rights. Use, duplication or disclosure by the U.S. Government is
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subject to restrictions as set forth in subdivision (b)(3)(ii) of the Rights in Technical Data and
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Computer Software Clause at 252.227-7013. If You are using the Software outside of the United
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States, You will comply with the applicable local laws of Your country, U.S. export control law,
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and the English version of this Agreement.
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16. Contractor/Manufacturer. The Contractor/Manufacturer for the Software is:
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Transaction Processing Performance Council
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572B Ruger Street, P.O. Box 29920
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San Francisco, CA 94129
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17. General. This Agreement is binding on You as well as Your employees,
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employers, contractors and agents, and on any successors and assignees. This Agreement is
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governed by the laws of the State of California (except to the extent federal law governs
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copyrights and trademarks) without respect to any provisions of California law that would cause
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application of the law of another state or country. The parties agree that the United Nations
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Convention on Contracts for the International Sale of Goods will not govern this Agreement.
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This Agreement is the entire agreement between us regarding the subject matter hereof and
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supersedes any other understandings or agreements with respect to the Materials or the subject
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matter hereof. If any provision of this Agreement is deemed invalid or unenforceable by any
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court having jurisdiction, that particular provision will be deemed modified to the extent
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necessary to make the provision valid and enforceable, and the remaining provisions will remain
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in full force and effect.
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SPECIAL PROVISIONS APPLICABLE TO THE EUROPEAN UNION
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If You acquired the Materials in the European Union (EU), the following provisions also
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apply to You. If there is any inconsistency between the terms of the Software License Agreement
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set out earlier and the following provisions, the following provisions shall take precedence.
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1. Distribution. You may sublicense modifications of the Software covered in this
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Agreement if they meet the requirements of clause 9 above.
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2. Limited Warranty. EXCEPT AS STATED EARLIER IN THIS AGREEMENT, AND
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AS PROVIDED UNDER THE HEADING “STATUTORY RIGHTS”, THE SOFTWARE IS
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PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR
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IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES,
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NONINFRINGEMENT, OR CONDITIONS OF MERCHANTABILITY, QUALITY AND
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FITNESS FOR A PARTICULAR PURPOSE.
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3. Limitation of Remedy and Damages. THE LIMITATIONS OF REMEDIES AND
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DAMAGES IN THE SOFTWARE LICENSE AGREEMENT SHALL NOT APPLY TO
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PERSONAL INJURY (INCLUDING DEATH) TO ANY PERSON CAUSED BY TPC’S
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NEGLIGENCE AND ARE SUBJECT TO THE PROVISION SET OUT UNDER THE
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HEADING “STATUTORY RIGHTS”.
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4. Statutory Rights: Irish law provides that certain conditions and warranties may be
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implied in contracts for the sale of goods and in contracts for the supply of services. Such
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conditions and warranties are hereby excluded, to the extent such exclusion, in the context of this
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transaction, is lawful under Irish law. Conversely, such conditions and warranties, insofar as they
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may not be lawfully excluded, shall apply. Accordingly nothing in this Agreement shall
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prejudice any rights that You may enjoy by virtue of Sections 12, 13, 14 or 15 of the Irish Sale of
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Goods Act 1893 (as amended).
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5. General. This Agreement is governed by the laws of the Republic of Ireland. The local
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language version of this agreement shall apply to Materials acquired in the EU. This Agreement
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is the entire agreement between us with respect to the subject matter hereof and You agree that
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TPC will not have any liability for any untrue statement or representation made by it, its agents
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or anyone else (whether innocently or negligently) upon which You relied upon entering this
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Agreement, unless such untrue statement or representation was made fraudulently.
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