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MAINSOFT TECHNOLOGY PREVIEW OF LOTUS CONNECTIONS INTEGRATION
WITH RATIONAL JAZZ
END USER LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING MAINSOFT’S TECHNOLOGY PREVIEW OF LOTUS CONNECTIONS® INTEGRATION WITH RATIONAL® JAZZ™ OR ANY ACCOMPANYING DOCUMENTATION (TOGETHER, THE "SOFTWARE"). THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("AGREEMENT") GOVERN YOUR USE OF THE SOFTWARE. By downloading or using Mainsoft’s Technology Preview of Lotus Connections Integration with Rational Jazz and/or your evaluation or permanent license key a) you agree to this agreement on your behalf as an individual, and on behalf of your employer or another entity, if the employer or entity has not previously accepted these terms (you and your employer or other entity, collectively, the "Licensee") and agree to be bound by its terms and conditions; and b) you are accepting electronic delivery of the Software. If the Licensee has not previously accepted these terms, you represent and warrant that you have full legal authority to bind the Licensee to these terms and conditions. This Agreement, effective as of the date you click "I have read and agree to the above agreement" (the "Effective Date") is a legal agreement between Licensee and Mainsoft Corporation ("Mainsoft"). By using Mainsoft ‘s Technology Preview of Lotus Connections Integration with Rational Jazz, you agree to be bound by the user and distributor terms and conditions of the 3rd party licenses specified in the Appendix, below. RECITALS A. Mainsoft has developed a technology preview - that enables integrating contents from IBM Lotus Connections with Rational® Jazz (the "Software"). B. Mainsoft and Licensee now wish to enter into this Agreement by which Mainsoft will grant to Licensee certain non-exclusive rights to use the Software. NOW THEREFORE, in consideration of the mutual covenants herein between the parties, Mainsoft and Licensee hereby agree to the following: 1. DEFINITIONS. "Documentation" means any and all documentation for the Software provided by Mainsoft to Licensee under this Agreement. Documentation will be provided in electronic format. "Intellectual Property Rights" means patent rights, copyright rights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction. "Licensed Materials" shall mean the Software and the Documentation. "Vendor" means Mainsoft or a reseller of Mainsoft such as IBM or a system integrator reselling Mainsoft's software. "Order Confirmation" means an electronic document sent by Mainsoft to Licensee after the receipt of a purchase order sent by Licensee to Vendor. The Order Confirmation includes the product codes and quantities of Server licenses purchased by Licensee. "Server" means a computer system or virtual machine that executes requested procedures, commands, or applications to one or more user or client devices and in which IBM Rational Jazz Team Server is installed. Server is the unit of measure by which the Software is licensed. A license must be obtained for each Server in which the Software is installed. 2. LICENSES. 2.1 Reproduction and Installation Licenses Grant. Subject to the terms and conditions of this Agreement, Mainsoft grants to Licensee the non-exclusive, non-transferable, worldwide, perpetual license to install and use the Software on the number of Servers and associated client workstations as specified in Order Confirmation(s) and purchased by Licensee, provided that the computing devices are Licensee-owned and are within Licensee's control. Notwithstanding the above, if the Licensee has not issued a purchase order to Vendor prior to downloading, installing or using the Software, this license is an "EVALUATION LICENSE" and the term of this license is for the number of days specified in the evaluation license key. 2.2 License Tracking. Licensee will ensure that the total number of Servers, as defined in Section 1, used to execute the Software under the terms of this Agreement does not exceed the number of purchased Server licenses. 2.3 Prohibited Distribution. Licensee is strictly prohibited from copying or distributing the Software in any form. 2.4 No Other Rights. Licensee's rights in, and to make use of, the Licensed Materials will be limited to those expressly granted in this Section 2. Licensee will make no other use of the Licensed Materials. Except as expressly licensed in this Section 2, Mainsoft grants no other rights or licenses to Licensee, by implication, estoppels or otherwise and Licensee must obtain valid licenses for the products interacting with the Software including but not limited to IBM Lotus Connections and IBM Rational Jazz products. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY MAINSOFT OR ITS SUPPLIERS. 3. LICENSE RESTRICTIONS. 3.1 Software and Documentation Usage Restrictions. Licensee will not: 1) modify, translate, reverse engineer, decompile, disassemble, create derivative works of the Software, or copy the Software (except for a back-up copy of the Software); 2) rent, lend, transfer, distribute or grant any rights in the Software in any form to any person; or 3) remove or in any manner alter any proprietary notices, labels or markings on the Software or the Documentation; Licensee will reproduce such notices, labels or markings on all copies it makes of the Software or Documentation. 4. UPDATES, MAINTENANCE AND SUPPORT. This license does not entitle You to receive from MAINSOFT hard-copy documentation, support, telephone assistance, or enhancements or updates to the Program (collectively, "Support"), although MAINSOFT, at its sole discretion may choose to provide such Support. Any enhancements, updates and other materials provided by MAINSOFT as part of Support are considered to be part of the Program and therefore governed by this Agreement. 5. PROPRIETARY RIGHTS. Mainsoft's Ownership. The Licensed Materials and Mainsoft Confidential Information are and will remain the sole and exclusive property of Mainsoft. Mainsoft's rights under this section will include, but are not limited to, all copies of the Licensed Materials, in whole and in part, and all Intellectual Property Rights in the Licensed Materials. 6. WARRANTIES AND DISCLAIMERS. 6.1 Warranty and Exclusive Remedy. Mainsoft warrants that the Licensed Materials will operate substantially in conformity with the Documentation in all material respects for a period of sixty (60) days from the Effective Date. Licensee's sole and exclusive remedy for any breach of such warranty will be that Mainsoft will, provided that Licensee makes its warranty claim within such sixty (60) day period, elect to either repair or replace the Licensed Material so that it meets such warranty or refund to Licensee the unused prepaid license fees. 6.2 Disclaimers. Except for the warranty specified above, Mainsoft makes no representations or warranties to Licensee under this Agreement with respect to the Licensed Materials or otherwise. Mainsoft and its suppliers do not warrant that the Licensed Materials will meet Licensee's requirements or will be uninterrupted or error-free. THE WARRANTIES REFERRED TO ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7. INDEMNITIES. 7.1 Mainsoft's Indemnity. (a) Duty to Indemnify and Defend. Mainsoft will indemnify Licensee against, and will defend or settle at Mainsoft's own expense any action or other proceeding brought against Licensee to the extent that it is based on a claim that the use of the Licensed Materials as licensed in this Agreement infringes any copyright or incorporates any misappropriated trade secrets. Mainsoft will pay any and all costs, damages, and expenses (including but not limited to reasonable attorneys' fees) awarded against Licensee in any such action or proceeding attributable to any such claim. Mainsoft will have no obligation under this Section as to any action, proceeding, or claim unless: (i) Mainsoft is notified of it promptly; (ii) Mainsoft has sole control of its defense and settlement; and (iii) Licensee provides Mainsoft with reasonable cooperation in its defense and settlement. In the event that Mainsoft believes that the Licensed Materials will become or have become subject to a third party claim of infringement or misappropriation, Mainsoft may, at its expense: (A) modify the Licensed Materials so that it is not infringing; (B) obtain a license from such third party; or (C) if Mainsoft is unable to do the foregoing despite its reasonable efforts to do so, Mainsoft may refund unused paid license fees and then terminate this Agreement. (b) Exclusions. Mainsoft will have no obligations under this Section 9.1 with respect to infringement or misappropriation arising from: (i) modifications to the Licensed Materials that were not authorized by Mainsoft; or (ii) the use of the Licensed Materials in combination with products not provided by Mainsoft, if the use of the Licensed Materials alone would not have resulted in such infringement or misappropriation. 8. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT FOR LICENSEE'S OBLIGATION TO PAY LICENSE FEES TO VENDOR'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, EACH PARTY'S TOTAL LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF AMOUNT OF THE PAYMENTS RECEIVED BY MAINSOFT OR THE AMOUNTS OWING TO MAINSOFT FROM LICENSEE UNDER THIS AGREEMENT. 9. TERM AND TERMINATION. 9.1 Term. The term of this Agreement will begin on the Effective Date and will continue for two (2) years unless it is terminated earlier in accordance with the provisions hereof. This Agreement may be renewed for additional periods upon the mutual written agreement of the parties, although each party acknowledges that the other is under no obligation to do so. 9.2 Events of Termination. Either party will have the right to terminate this Agreement if: (a) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice; or (b) the other party becomes the subject of a petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. 9.3 Survival. The rights and obligations of the parties contained in Sections 1, 2 & 3 (Definitions,Licenses and License Restrictions), 4 (Updates, Maintenance and Support), 5 (Records and Audits), 6 (Proprietary Rights), 8 (Indemnities), 9 (Limitations of Liability) and Section 11 & 12 (Compliance with Law and General) will survive the termination or expiration of this Agreement. 9.4 Nonexclusive Remedy. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. 10. COMPLIANCE WITH LAW. Export Controls. Licensee agrees that it does not intend to, and will not, directly or indirectly, export or re-export (i) any Software or related documentation or technical data or (ii) any product (or any part thereof), process, or service that is the direct product of any Software, to any country, person, entity, or end user without the appropriate United States and foreign government export licenses. Restricted countries currently include, but are not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria. Licensee warrants and represents that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked, or denied Licensee's export privileges. 11. GENERAL. 11.1 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement, in whole or in part, without the other party's written consent, which will not be unreasonably withheld; provided, however, that: (a) either party will have the right to assign this Agreement in connection with a merger, reorganization, or sale of all, or substantially all, of its assets; and (b) Mainsoft will not be required to obtain any such consent from Licensee for its assignment of its rights to receive payments under this Agreement. Any attempt by either party to assign this Agreement, except in accordance with the foregoing, will be null and void. 11.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws rules. Any action arising out of any dispute between any of the parties to this Agreement shall be brought in either the Superior Court for the County of Santa Clara or the United States District Court for the Northern District of California, and each of the parties hereto hereby submits itself to the jurisdiction of such courts for purposes of any such action. 11.3 Severability. If any provision of this Agreement is found to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force. 11.4 Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that such party gives prompt written notice thereof to the other party. 11.5 Notices. All notices under this Agreement will be deemed given when delivered personally, sent by confirmed facsimile transmission, or sent by certified or registered U.S. mail or nationally-recognized express courier, return receipt requested, to the address shown above or as may otherwise be specified by either party to the other in accordance with this section. 11.6 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. 11.7 Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. 11.8 Attorneys Fees. In the event of any litigation under this Agreement, the prevailing party will have its reasonable attorneys' fees paid by the other party. 11.9 Entire Agreement. This Agreement and the Order Confirmations are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. Any provisions of any purchase order or similar document submitted by either party to the other, which are in addition to or inconsistent with the terms and conditions of this Agreement will be deemed stricken from such document. IBM, Rational, Jazz, Lotus, and Connections are either registered trademarks or trademarks of IBM Corporation in the United States and/or other countries. Appendix: Third party code included with Mainsoft’s TECHNOLOGY PREVIEW OF LOTUS CONNECTIONS INTEGRATION WITH RATIONAL JAZZ The following table describes the license files of third party technologies that are included with this release of the Software. Package name: HttpClient Version: 3.0.1 Description: The Apache Commons HttpClient provides an efficient, up-to-date, and feature-rich package implementing the client side of the most recent HTTP standards and recommendations. It is used by Mainsoft in the System.NET API implementation. Distributor: Apache Software Foundation (http://projects.apache.org/projects/commons_httpclient.html) License: Apache License, Version 2.0 Package name: ICU Version: 3.2 Description: ICU is a mature, widely used set of C/C++ and Java libraries providing Unicode and Globalization support for software applications. It is used in the Mainsoft .NET Framework, in the implementation of Globalization and Localization. Distributor: IBM (http://icu-project.org/) License: ICU License (MIT) Package name: Mono class libraries Version: Revision 82453 from Mono's SVN repository Description: The Mainsoft .NET Framework is shared with Mono. Mainsoft is an active contributor to the Mono project. Distributor: Mono (http://www.mono-project.com/The_Class_Library) License: The MIT License
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