Note: The terms and conditions of this license agreement have changed from the initial release of this product to accommodate new functionality and licensing structures. Please read this document carefully.


LUMIGENT TECHNOLOGIES
ENTEGRA(TM) FOR SQL SERVER(TM)
SOFTWARE LICENSE AGREEMENT

**IMPORTANT**

Please read this document carefully.  This is a legal agreement between you, as either an individual, or an employee or authorized agent of a legal entity (“Licensee”), and Lumigent Technologies, Inc. (“Lumigent”), for the use of a set of software programs known as Lumigent(R) Entegra(TM) for Microsoft(R) SQL Server(TM).

BY CLICKING THE ACCEPTANCE BUTTON, YOU REPRESENT AND AGREE THAT (i) YOU ARE AT LEAST 18 YEARS OF AGE, (ii) YOU ARE AUTHORIZED TO CONSENT TO THESE TERMS ON BEHALF OF LICENSEE, AND (iii) LICENSEE CONSENTS TO BE LEGALLY BOUND BY THESE TERMS.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE AGREEMENT, YOU MUST NOT USE THE SOFTWARE; YOU MUST IMMEDIATELY AND IRREVOCABLY DESTROY ANY AND ALL COPIES IN YOUR POSSESSION OF THE SOFTWARE AND ITS ACCOMPANYING PRODUCT KEYS AND DOCUMENTATION (“DOCUMENTATION”) OR, TO RECEIVE INSTRUCTION ON RETURN OF UNUSED SOFTWARE, CONTACT THE VENDOR FROM WHICH YOU PURCHASED IT.
 THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.  THE SOFTWARE IS LICENSED, NOT SOLD.

TERMS AND CONDITIONS OF SOFTWARE LICENSE AGREEMENT

1.	GRANT OF LICENSE; USE RESTRICTIONS. 

Subject to the terms and conditions of this License Agreement, Lumigent hereby grants to you as Licensee a nonexclusive, nontransferable license, without right of sublicense, to install and use Lumigent(R) Entegra(TM) for Microsoft(R) SQL Server(TM) for internal business purposes, together with any updates and modifications to the foregoing, if any, provided to you by Lumigent (collectively, “Software”).  The Software is licensed solely in the format provided on the installation media, with no right to modify or create derivative works.

The Software includes multiple capabilities; each such capability requires a license to use hereunder. The licensable capabilities include, upon payment of the appropriate license fee, the right to: (1) create and access an Entegra Repository, (2) install and access an Entegra Report Server, (3) collect information about data modification activity (“DM Capability”) on a database instance, (4) alert on and collect information about structural change and session activity (“DD Capability”) on a database instance, (5) collect information about stored procedure activity (“SP Capability”) on a database instance, (6) collect information about data viewing activity (“DV Capability”) on a database instance, and (7) install and use the Entegra Management Console (each capability shall be referred to herein as a “Capability” and collectively, as the “Capabilities”). 

As described further below, each of the DM Capability, the DD Capability, the SP Capability, and the DV Capability is licensed on a per-Server/Server-Processor combination basis (“Processor-based Capabilities”). As used in this License Agreement, a “Server” is any of your computer systems that are capable of running an instance of SQL Server software, and a “Server-Processor” is a processor (i.e., CPU) in any of your Servers. Server-Processors shall not include a processor which is inactive or inaccessible to any operating system copies on which SQL Server is configured to operate (examples of processors inaccessible to operating system copies are processors that are isolated by partitioning or other similar methods). The license specifically permits the use of the licensed Processor-based Capability on a specified number of Servers, each of which has a specified maximum number of Server-Processors in each such server. For each Server licensed, the maximum number of Server-Processors for the Server shall be that Server’s “Maximum Processors”.

A product key (“Product Key”) will be required to use the Software. Licensee may obtain a Product Key from Lumigent or an authorized Lumigent(R) Entegra(TM) vendor upon payment of the corresponding License fee for the licensed Capabilities. 

Your License permits you to use a specified number (zero or more) of each of the Capabilities (“Units”), as follows:

(a)	if you have licensed the use of one or more Units of the Entegra Repository (the “Number of Repositories Licensed”): this License Agreement permits Licensee to concurrently install and use separate Entegra Repositories, on Licensee’s own systems, up to the Number of Repositories Licensed, and to install and use an equivalent number of Entegra Report Servers. The number of Entegra Repositories installed shall in no event exceed the Number of Repositories Licensed.

(b)	if you have licensed the use of one or more Server/Server-Processor combination Units of DM Capability (the “Number of DM Capabilities Licensed”): this License Agreement permits Licensee to concurrently install and use DM Capabilities on no more than the specified number of  Licensee’s own Servers. The number of Server Processors in any Server on which data modification activity is being collected shall in no event exceed that Server’s Maximum Processors. 

(c)	if you have licensed the use of one or more Server/Server-Processor combination Units of DD Capability (the “Number of DD Capabilities Licensed”): this License Agreement permits Licensee to concurrently install and use DD Capabilities on no more than the specified number of Licensee’s own Servers. Each Unit of DM Capability must be used together with a Unit of DD Capability. The number of Server Processors in any Server on which structural change and session activity is being collected shall in no event exceed that Server’s Maximum Processors.

(d)	if you have licensed the use of one or more Server/Server-Processor combination Units of SP Capability (the “Number of SP Capabilities Licensed”): this License Agreement permits Licensee to concurrently install and use SP Capabilities on no more than the specified number of Licensee’s own Servers. The number of Server Processors in any Server on which stored procedure activity is being collected shall in no event exceed that Server’s Maximum Processors.

(d)	if you have licensed entitles the use of one or more Server/Server-Processor combination Units of DV Capability (the “Number of DV Capabilities Licensed”): this License Agreement permits Licensee to concurrently install and use DV Capabilities on no more than the specified number of Licensee’s own Servers. The number of Server Processors in any Server on which DV activity is being collected shall in no event exceed that Server’s Maximum Processors.
 
(e)	the Entegra Management Console may be installed and used on any number of Licensee’s computers by any number of Licensee employees or agents, provided that it is used to configure and manage Capabilities in a manner consistent with and granted by this License Agreement and in numbers not to exceed those granted by this License Agreement.

Lumigent may, in its sole discretion, permit the use of the Software for training, demonstration, and evaluation purposes, excluding production use (“Not For Production Mode”). A “Not For Production” Product Key is required to use the Software in Not For Production Mode and shall permit installation of a specified number of Units of each of the Capabilities. Licensee agrees that Licensee shall use Software licensed in Not For Production Mode only for training, demonstration and evaluation purposes, excluding production use.

Each Capability is licensed with a specified period of use. Capabilities licensed with time limitations will automatically be disabled at the end of the corresponding time period, by employing a restriction mechanism which restricts the program to a limited working time. This restriction mechanism, and the manner in which it enforces the restriction, is maintained in confidence by Lumigent as a trade secret, and you may not publish, disclose, or reveal it.  You agree that you will not do anything to circumvent or defeat the restriction mechanism. Any failure of the restriction mechanism to restrict the time period will not constitute an express or implied extension of that period, and Licensee agrees to terminate use of the Software at the end of the specified period.

Additional components may be provided on the Software’s installation media.  Such components are licensed by the owners of the respective components, and use of these components is controlled by the corresponding license agreements presented during installation of these components.  In no event shall Lumigent be considered a party to or be liable to Licensee under such license agreements.

Licensee agrees that it shall not use, nor permit use of, the Software for any purpose except as expressly authorized in this Section 1.

2.	RESTRICTIONS.  Licensee may not transfer, lease, assign, sublicense, resell, pledge, rent, share, use for the benefit of or to provide services to any third party, or distribute the Software or any accompanying installation program(s) or Product Key(s) or make it available for timesharing, service bureau, on-line, or other remote access use, unless previous written consent is granted by Lumigent. Licensee agrees that it shall not modify, port, adapt, translate, localize, reverse compile, decrypt, extract, disassemble, or otherwise reverse engineer or attempt to discover the source code of any portion of the Software, Product Key(s), or Product Key mechanism. Licensee agrees that it shall not prepare derivative works of the Software. Licensee further agrees to keep confidential any Product Keys received for use with the Software.

Licensee may only make copies of the Software and any accompanying installation program(s) to support the Grant of License under Section 1.  Licensee agrees that all Units and copies of the Software shall be owned by Lumigent, shall be considered Software subject to this License Agreement, and shall include the same proprietary and copyright notices and legends as supplied by Lumigent and its licensors. Licensee may not disclose the results of any performance, functional or other evaluation or benchmarking of the Software to any third party without the prior written permission of Lumigent. Licensee agrees that it may not remove or use any patent, trademark, copyright, trade secret or other proprietary notices or labels on the Software or Documentation. Lumigent, Entegra, Log Explorer, and the Lumigent logo are trademarks of Lumigent Technologies, Inc.; all other product and company names are property of their respective owners.

3.	OWNERSHIP OF SOFTWARE.  Licensee agrees that no title to the Software, or intellectual property in any of the Software, or in any Software copy, is transferred to Licensee, and that all rights not expressly granted to Licensee hereunder are reserved by Lumigent and its licensors.  This License Agreement is not a sale of the original Software or any copy or portion thereof.

4.	TRANSFER RESTRICTIONS.   Neither this License Agreement, nor any part thereof, may be transferred to a third party without the written consent of Lumigent. Except as provided above, or with Lumigent's prior written consent, neither this License Agreement nor any rights or obligations under this License Agreement, in whole or in part, shall be sublicensed, assigned or otherwise transferred and any attempt to sublicense, assign or transfer this License Agreement or any rights or obligation under this License Agreement shall be null and void.

5.	EXPORT RESTRICTIONS.  Licensee may not export or re-export the Software or any copy or adaptation in violation of any applicable laws or regulations.  Licensee agrees that Licensee does not intend to, and will not, without the prior written approval, if required, of the Office of Export Administration of the U.S. Department of Commerce, Washington, D.C. 20230, transmit either directly or indirectly, any portion of the Software to any country for which such approval is required. This software is subject to the U.S. Export Administration Regulations and other U.S. law, and may not be exported or re-exported to certain countries (as of September 2003 the list includes Balkans, Burma, Cuba, Iran, Iraq, Liberia, Libya, North Korea, Sudan, and Zimbabwe) or to persons or entities prohibited from receiving U.S. exports (including Denied Parties, Specially Designated Nationals, and entities on the Bureau of Export Administration Entity List or involved with missile technology or nuclear, chemical, or biological weapons).

6.	TERMINATION.  If the license granted to Licensee hereunder includes time-limited use of any capabilities, Licensee’s license to use each such Capability expires on the end date of the corresponding period. Lumigent may terminate the license granted to Licensee under Section 1 and/or this License Agreement upon notice for failure to comply with any of the terms or conditions of this License Agreement.  Upon termination, you must immediately destroy the Software, together with all copies and accompanying Product Key(s), in any form.  Licensee may terminate this License Agreement by destroying the Software, together with all copies and accompanying Product Key(s), in any form. The restrictions and obligations contained in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 shall survive any expiration or termination of this License Agreement.

7.	GOVERNING LAW; DISPUTES.  This License Agreement shall be governed by and interpreted in accordance with the laws of The Commonwealth of Massachusetts in the United States of America, excluding its choice of law rules.  Lumigent and Licensee hereby agree that any dispute regarding the interpretation or validity of, or otherwise arising out of, this License Agreement, or relating to the Software licensed hereunder shall be subject to the exclusive jurisdiction of the state courts in Middlesex County, Massachusetts (or, if there is federal jurisdiction, the United States District Court for the Commonwealth of Massachusetts), and the Lumigent and Licensee agree to submit to the personal and exclusive jurisdiction and venue of these courts.

8.	PAYMENT, TAXES, AND AUDIT RIGHTS. Licensee is responsible for making full and timely payment for the Software. Licensee is also responsible for paying any federal, state, county, local or governmental taxes, duties, excise taxes, now or hereafter applied on the production, storage, sale, transportation, import, export, licensing or use of the Software or arising out of or related to this License Agreement including sales tax, value added tax or similar tax.  Any taxes imposed by any US, Canadian or other federal, state, provincial or municipal government or any amount in lieu thereof, including interest and penalties thereon, paid or payable at any time by Lumigent arising from or related to its fulfillment of the terms and conditions of this License Agreement, exclusive of taxes based on net income, shall be borne by Licensee.  Licensee shall pay all of Lumigent's reasonable fees, costs and expenses (including reasonable attorneys' fees) if legal action is required to collect outstanding balances. The terms and conditions of this Agreement will prevail over any terms of Licensee's purchase order or other forms used in acquiring a license to the Software, and any conflicting or additional terms in such forms will be of no effect. Lumigent may, upon fifteen (15) days' advance notice and at its expense, conduct an annual audit, during Licensee’s normal business hours, of Licensee’s use of the Software and Documentation to verify compliance with this Agreement. Licensee shall provide Lumigent or an authorized representative with access to records, hardware and employees in order to perform the audit. 

9.	INTEGRATION.  This License Agreement is the entire agreement between Licensee and Lumigent relating to Software and: (i) supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between parties during the term of this License Agreement.  No modification to this License Agreement will be binding, unless in writing and signed by a duly authorized representative of Lumigent and Licensee.
 
10.	SEVERABILITY.  If any provision of this contract is found, by a court of competent jurisdiction, to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and all other provisions shall remain in effect.
 
11.	LIMITED WARRANTY AND DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY. Lumigent warrants that it has the authority and right to license the Software, and that the Software will substantially conform to the material printed specifications therefore which are in effect on the date of original delivery of such Software.  Lumigent's warranty obligation shall extend for a period of thirty (30) days from the date of delivery of the Software to Licensee, and is solely for the benefit of Licensee, who has no authority to assign, transfer, or pass through this warranty to any other person or entity.  Except as provided in this Section, the Software is provided to Licensee on an “AS IS” basis, and neither Lumigent nor its licensors make any other warranty of any kind, express or implied, with regard to the Software licensed hereunder.  Lumigent and its licensors do not warrant or represent that the Software will operate uninterrupted or error free or that all defects in the Software are correctable or will be corrected.  This warranty set forth herein shall not apply if Software is used other than in accordance with Lumigent's written instructions, or if any of Licensee's hardware equipment associated with the use of Software malfunctions.

THE FOREGOING WARRANTIES ARE IN LIEU OF, AND LUMIGENT AND ITS LICENSORS DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

Some states do not allow the exclusion of implied warranties, so the exclusion above may not apply to Licensee.  This warranty gives Licensee specific legal rights, and Licensee may have other rights, which vary from state to state.

Lumigent's and its licensors’ entire liability and Licensee's exclusive remedy for any defects in the Software shall be the purchase price of the Software.
 
IN NO EVENT SHALL LUMIGENT OR LUMIGENT'S LICENSORS BE LIABLE TO LICENSEE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR DATA AND PERSONAL INJURY), WHETHER OR NOT LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS LICENSE AGREEMENT OR LICENSEE'S USE OF THE SOFTWARE.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  In no event will Lumigent or its licensors be liable for any claim against Licensee by a third party, and Licensee hereby agrees to defend, indemnify, and hold Lumigent and its licensors harmless for any claims for costs, damages, expenses (including without limitation, reasonable attorneys' fees) or liability arising out of or in connection with the installation, use and performance of the Software licensed hereunder, whether alone or in combination with any other product or service.

Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the limitation above may not apply to Licensee.

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Software in this License Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.


12.	U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND.  The Software and Documentation have been developed entirely at private expense.  Use, duplication or disclosure of the Software by the U.S. Government is subject to restrictions as set forth in FAR 52.227-19(c) or subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 52.227-7013 and/or in similar or successor clauses in the FAR, or the DOD or NASA FAR supplement.  Unpublished-rights reserved under the Copyright Laws of the United States.  

END OF LICENSE AGREEMENT


