Software License Agreement
Products covered by this Software License Agreement are Schema Compare for SQL Server, Data
Compare for SQL Server, Schema Compare SDK for SQL Server, Schema Compare for Oracle
Databases, Data Compare for Oracle Databases, Builder for SQL Server, Profiler for SQL Server,Documenter, Script Executor, RSS Reporter for SQL Server and Sql Search.
April 6, 2020
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS BETWEEN xSQL SOFTWARE
AND YOU ACTING ON BEHALF OF YOURSELF AND YOUR EMPLOYER. BY PROCEEDING TODOWNLOAD, INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS
ELECTRONICALLY EMBEDDED OR BY OBTAINING A LICENSE KEY FOR THIS SOFTWARE,
YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND
CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN CLICK“DO NOT ACCEPT,” DO NOT INSTALL OR USE THE SOFTWARE AND DELETE THE
SOFTWARE FROM YOUR COMPUTER SYSTEM. THE “EFFECTIVE DATE” OF THISAGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “I AGREE” BUTTON. For the purposeof this Agreement, you and, if applicable, such company (or other entity) constitutes “you”, “your” or“Customer” and “xSQL Software”, “xSQL”, “us”, “our” or “we” refers to Bright Minds Group, Inc. (dbaxSQL Software), 10 Glenlake Pkwy, Suite 130, Atlanta, GA 30328, and its Affiliates, the owner andprovider of the Software. Unless defined elsewhere in this Agreement, terms in initial capital lettershave the meanings set forth in Section 12.
•

LICENSE AND DELIVERY.
o

License Grants. The Software is offered in the following license types, which
may be combined, pursuant to the specific grant and restrictions set forth
below and for the Term noted in the Order Form. The following license types
may also be available as Site, team or enterprise licenses if noted on theOrder Form. For the avoidance of doubt, if the license type listed below is
not indicated on your Order Form then it does not apply to your purchase.
The license covers any updates, upgrades or new releases, if any areprovided to you by us and any copies you are permitted to make hereunder
and any available Documentation. Any references to a “sale” or a “purchase”
of the Software in this or any other document means “license” in accordancewith the terms contained in this Agreement. You may make a reasonable
number of backup copies of the Software and Documentation for internal,
Non-Commercial, Non-Production use. All titles, trademarks and copyrightand restricted notices in the Software must be reproduced in any copies you
are permitted to make hereunder. As noted in the Order Form, during theapplicable Term and in consideration of your payment of the applicable fees,and subject to the terms, conditions and restrictions set forth in thisAgreement:▪

Trial License. We grant you a free-of-charge, non-assignable,
non-sublicensable, non-exclusive, worldwide right and license
for one (1) Authorized User to install and use one (1) copy of
the Software solely for internal Non-Production purposes toevaluate the Software to determine whether to purchase alicense to the Software. You may not download more thanone (1) copy of the Software unless otherwise authorized byus. You may not use the Software for any other purpose. You
may only use the Software for thirty (30) days from the
Effective Date, unless otherwise authorized by us ("Trial
Period"). Unless you pay the applicable fee for the Software,
the Software may become inoperable and, in any event, yourright to use Software automatically expires at the end of the
Trial Period. We may terminate your license to the trial
version of the Software upon written notice at any time for any
reason and without liability of any kind. If you subsequently
license a non-trial version of the Software, your license to thetrial version of the Software shall immediately terminate.

▪

Free Commercial License. We grant you a non-assignable,
non-sublicensable, non-exclusive, worldwide right and license
for one Authorized User to install the Software on one (1)Machine which may be restricted to a Desktop/Workstation orServer or in other ways as communicated by us to you on thewebsite and internally use the Software for Commercial
purposes.

▪

Free Non-Commercial License. We grant you a nonassignable, non-sublicensable, non-exclusive, worldwide rightand license to internally use and install the Software on (1)Desktop/Workstation as indicated on the Licensor’s website
for Non-Commercial purposes.

▪

Development Workstation License. We grant you a nonassignable, non-sublicensable, non-exclusive, worldwide rightand license to use and install the Software on the number ofDevelopment Workstations indicated in the Order Form which
are owned or controlled by you. The total count ofDevelopment Workstations where the Software is installedmust not exceed the number of licenses purchased on theapplicable Order Form.

▪

Developer License. We grant you a non-assignable, nonsublicensable, non-exclusive, worldwide right and license forthe number of Developer(s) indicated in the Order Form toinstall the Software on any number of Machines in order tointernally use the Software to create, develop and test
Applications. For clarity, a single Software license may be reallocated to another Developer in the event that the originalDeveloper is no longer employed by you or has been
assigned to a new role where access to the Software will nolonger be required on a permanent basis.

▪

Server License. We grant you a non-assignable, nonsublicensable, non-exclusive, worldwide right and license tointernally use and install the Software on the number ofServer(s) listed in the Order Form for Commercial purposes.
Unless stated otherwise in the Order Form, for the purposesof this license grant, you may install the Software on one (1)Machine as a substitute for, and not in addition to, one (1)Server. The total count of Server(s) where the Software is
installed must not exceed the number of licenses purchasedon the applicable Order Form(s).
▪

Machine License. We grant you a non-assignable, nonsublicensable, non-exclusive, worldwide right and license tointernally use and install the Software on the number ofMachine(s) set forth in the Order Form for Commercial
purposes.

▪

Site License. We grant you a non-assignable, nonsublicensable, non-exclusive, worldwide right and license tointernally use and install the Software on any number ofDevelopment Workstations, Machines or Servers belonging toa single legal entity, at a single physical Site, as listed in theOrder Form for Commercial purposes.

▪

Enterprise-License. We grant you a non-assignable, nonsublicensable, non-exclusive, worldwide right and license tointernally use and install the Software on any number ofDevelopment Workstations, Machines or Servers belonging toa single Legal Entity as listed in the Order Form forCommercial purposes.

For all Licensed Software made generally available on a “perMonitored Element” or “per-Monitored Device” or “perMonitored Instance” basis and licensed hereunder by
Customer on a “per-Monitored Element” or “per-Monitored
Device” basis, Customer may install, operate and use such
Licensed Software on a single machine to monitor a limited
number, as specified on the order form, of Monitored Element
or Monitored Device per license purchased by Customer.
LICENSE RESTRICTIONS. All Software licenses are subject to the following
restrictions: (a) For each copy of the Software licensed, you may only installone (1) instance of the Software on equipment located in the country
identified on the applicable online order form. Additional installations orquantities of the Software require additional licenses. Any relocation of the
Software outside the country indicated in the online order form or to different
machines is subject to Our transfer policy and applicable export laws.
Software licenses may be reallocated to different equipment provided that
the Software is uninstalled from the original equipment. (b) If you install
updates, upgrades or new releases of the Software, if any are provided to
you by us, you must uninstall and cease use of all previous versions of the
Software, so that your actual use and deployment of the Software
corresponds to the quantities that you actually licensed and paid for. (c) Youruse of the Software is limited to your internal data processing and computing
needs. (d) You can’t make the Software available to your Affiliates orunauthorized third parties without our express written consent. (e) The
Software may not be used for outsourcing or service bureau purposes orotherwise processing third party data for the benefit of any third party. (f) You▪

ocan’t relicense, rent or lease the Software for third-party training orcommercial time-sharing. (g) You agree that you won’t distribute, sell,
sublicense, subcontract or otherwise transfer copies of or rights to theSoftware or any portion thereof, and shall not use the Software except as
expressly permitted hereunder. (h) You agree to not adapt, translate, reverse
engineer, decompile or otherwise derive the source code for the Software or
any of the related features of the Software or to allow third parties to do so,
unless otherwise mutually agreed in writing and except to the extent
specified by law. (i) You will not use any third party software, including any
open source software, in conjunction with the Software, unless you ensurethat such use does not cause the Software to become subject to any third
party license applicable to such third party software or require the public
disclosure or distribution of the Software or the licensing of the Software forthe purpose of making derivative works. (j) You will not use the Software forany purpose other than as licensed under this Agreement, including
benchmarking or using the Software to create products or services similar to,or competitive with, the Software. (k) You will not use the Software todevelop any works which provide substantially the same functionality as theSoftware or enables building other programs which could compete with theSoftware, including but not limited to, using a web service to call and/or
directly expose the functionality available in the Software.
o

APPLICATION DISTRIBUTION. You may distribute a limited number ofcopies, as specified on the order form, of one or more Applications that use
the Software as a runtime component without owing additional fees,
provided the Software is not licensed to you on a Trial or Non-Commercial
basis and the Application(s): (i) contain no modifications to the Software(including alterations to the original proprietary notices); and (ii) are incompiled, executable form; (iii) do not provide substantially the samefunctionality as the Software or have as one of their purposes to build othersoftware that would compete with the Software; (iv) do not reproduce or
distribute any portion of the Documentation or document the Application in amanner that identifies the programmatic interface to the callable routines in
the Software; (v) are not a software development application that is soldprimarily to software developers or system integrators, or a development
environment of any kind; and (vi) are subject to a license agreement that
limits Application end-users use of the Software to a run-time component,
restricts the Application end-user from changing, altering or modifying theSoftware, creating derivative works, translations, reverse assembling,
reverse compiling, disassembling, or in any way reverse engineering theSoftware, and prevents the Application end-user from sublicensing, renting,
distributing, leasing or otherwise transferring or assigning any portion of the
Software. For clarity, you may not distribute the Software as a runtime
component of your Application(s) without explicit permission from us either
as set forth herein or in the Order Form.
▪

Subscription License. In the case of the Subscription License,
you may only distribute Applications that use the Software asa runtime component granted that the Application package
was built while your subscription license was active (notexpired).

o

LICENSE CLASS. xSQL issues two classes of licenses, a physical machinelicense (standard license) and a virtual machine license. A physical machinelicense may be activated either on a physical machine or on a virtual
machine. A virtual machine license may only be activated on a virtual
machine. Attempting to, or activating a virtual machine license on a nonvirtual environment violates the terms of the agreement and will result in the
revocation of your license.

•

LICENSE TERM.
oPERPETUAL. If you acquired a perpetual license then the license shall be
perpetual unless you fail to observe any of its terms, in which case it shallterminate immediately, and without additional prior notice. The perpetual
license entitles you to use in perpetuity the version of the Software that wasavailable at the time the license was granted.

o

SUBSCRIPTION. The license shall terminate upon the expiration of thesubscription period unless you fail to observer any of its terms, in which caseit shall terminate immediately, and without additional prior notice. The
subscription license may automatically renew as specified in the order form.
A Subscription license entitles you to receive unlimited email support, andSoftware upgrades and updates as they may become available during thesubscription term.

• FINANCIAL TERMS. You agree to pay us the fees indicated in the Order Form. Fees are
exclusive of any taxes. You acknowledge and agree all Order Forms are non-cancelable
and all fees are non-refundable. In the event that your credit card is declined for any
reason, all fees are still due and owing to us and you will promptly provide us with anothercredit card for payment purposes. Your continued use of the Software and Support on a
subscription basis is contingent upon annual payment of fees in advance. Fees are owed
and are to be paid in exchange for the rights granted and services made available
hereunder and not based on your actual use of the Software, Support or Professional
Services. All invoices for Software, Professional Services or Support are due and payable
upon receipt unless otherwise indicated on the invoice. If we don’t receive timely
payment, we reserve the right to charge a late fee equal to the lesser of one and half
percent (1.5%) compounded monthly of the amount due or the maximum amount allowed
by law in addition to our cost of collection. You are responsible for all applicable taxes
including, without limitation, federal, state and local sales, use, goods and services, valueadded, export or import or equivalent “indirect” taxes and duties on the Software, Support
or Professional Services as provided herein.
• OWNERSHIP. As between the parties, all right, title, and interest in the Software,
Documentation, Support, our Confidential Information (as defined below), and any othermaterials furnished or made available hereunder, including any copies made by you,corrections, bug fixes, enhancements, updates, upgrades, new releases or othermodifications and derivatives, including custom modifications, to the Software and allother deliverables, modifications, enhancements, and derivative works thereof, and allIntellectual Property Rights therein are and remain our property. No implied licenses are
granted hereunder. We reserve all rights not expressly granted hereunder. As between
the parties, all of your data processed and/or analyzed through the use of the Software,and your Confidential Information (as defined below) and all Intellectual Property Rights
therein are and remain your property.

• PROFESSIONAL SERVICES. You may request that we provide certain Professional
Services related to the Software. Any Professional Services to be provided will be
included in Order Form or statement of work (“SOW”), which shall describe the fees,
costs and expenses payable by you in connection with the performance of such
Professional Services, and which shall describe the scope of such services. The Order
Form or SOW shall be binding upon the Parties only after mutual execution or
performance by us and payment of Professional Services fees by you. Each such Order
Form or SOW shall be considered an integral part of this Agreement.
• PRIVACY PROVISION. You will install and use the Software on your premises andnetwork environment and as such we do not have any access to any of your data which isaccessed and used as part of, or through your use of the Software. Therefore, we are notconsidered a ‘processor’ under the European Union’s General Data Protection Regulation(EU/2016/679) (GDPR) or like privacy laws. For business to business data collectedduring the sales, registration, and marketing process and for the computing and network
environment data which is automatically transmitted to us in the United States of America
during installation, we will process and store such information pursuant to our privacy
policy available at https://www.xsql.com/privacy/.
• CONFIDENTIALITY. “Confidential Information” means any non-public information that isdesignated “confidential” or that a reasonable person should understand is confidential,
including, but not limited to, the terms of this Agreement, the Software, or related
performance test results derived by you, including but not limited to benchmark test
results. Neither party will disclose Confidential Information to any third party without thedisclosing party’s prior consent. Confidential Information may only be disclosed toindividuals that need to know such information, and on the condition that the individual issubject to a written agreement to protect information with terms as protective as thisAgreement. For the purposes of this section, the definition of xSQL Software andCustomer includes Affiliates of either party. Confidential Information remains the soleproperty of the disclosing party; except for rights explicitly granted in this Agreement, thereceiving party does not acquire any rights to such Confidential Information. The duty toprotect Confidential Information does not apply to information that is shown to be: (a)available to the public other than by a breach of a confidentiality obligation; (b) rightfullyreceived from a third party not in breach of a confidentiality obligation; (c) independently
developed by one party without use of the Confidential Information of the other; (d) known
to the recipient at the time of disclosure (other than under a separate confidentiality
obligation); (e) produced in compliance with applicable law or court order, provided theother party is given reasonable advance notice of the obligation to produce Confidential
Information (to the extent legally permitted) and reasonable assistance, at the disclosing
party’s cost, if the disclosing party wishes to contest the disclosure. Money damages may
not be a sufficient remedy for a breach of confidentiality. If either party breaches theconfidentiality obligations, the non-breaching party may seek injunctive or other equitablerelief without the necessity of posting a bond even if otherwise normally required. Such
injunctive or equitable relief is in addition to all other rights and remedies available at law
or in equity. You agree that if you provide us with any suggestions, comments, or otherfeedback about our Confidential Information (“Feedback”) such Feedback is given
voluntarily. You also agree that even if you designate such Feedback as confidential,
unless the parties enter into a separate subsequent written agreement, the Feedback
shall not be confidential and we shall be free to use, disclose, reproduce, license, orotherwise distribute the Feedback in our sole discretion without any obligations or
restrictions of any kind, including without limitation, Intellectual Property Rights.
• WARRANTY; DISCLAIMER. You represent and warrant that: (a) all users authorized by
you will abide by the terms of this Agreement; and (b) you will comply with all applicablelaws, regulations, rules, orders and other requirements, now or hereafter in effect, of any
applicable governmental authority, in your performance of this Agreement.
Notwithstanding any terms to the contrary in this Agreement, you will remain responsible
for acts or omissions of all users authorized by you to the same extent as if such acts oromissions were undertaken by you. THE SOFTWARE, SUPPORT AND PROFESSIONALSERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUTANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY
KIND. WE DO NOT WARRANT THAT SOFTWARE, SUPPORT OR PROFESSIONALSERVICES WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. WE
DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS(EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE,SUPPORT OR PROFESSIONAL SERVICES WHETHER ALLEGED TO ARISE BY
OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY
COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (I) WARRANTIESOF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY
PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAS BEEN
ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III)WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU
ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANYWARRANTIES.
• LIMITATION OF LIABILITY. EXCEPT FOR ANY ACTS OF FRAUD, GROSSNEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL WE BE LIABLE TO
YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY LOSS OF
PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY
INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISINGOUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE,SUPPORT AND PROFESSIONAL SERVICES, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE,
EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSSNEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL OUR TOTAL
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE
AGGREGATE OF THE AMOUNTS PAID OR PAYABLE BY YOU TO US, IF ANY,UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT
GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS
LIMITATION.
• TERM; TERMINATION. Except as otherwise stated herein, this Agreement will remain in
effect until terminated. The term for any Software starts on the Effective Date of the Order
Form and continues as indicated on the Order Form (“Term”). Except as otherwise
specified in the applicable Order Form, subscription terms are for twelve (12) months fromthe Effective Date (“Subscription Term”) and automatically renew for successive twelve(12) month periods, starting the day following the expiration of the previous Subscription
Term regardless of the actual subscription renewal date, unless and until terminated byeither party in accordance herewith or unless either party provides written notice ofnonrenewal to the other party at least 30 days prior to the end of the then-current
Subscription Term. We may increase pricing applicable to the renewal of any then-current
Subscription Term by providing you with notice thereof, including by email, at least thirty(30) days prior to the end of such Term. Unless otherwise indicated on an Order Form,you may terminate this Agreement or any Order Form at any time without cause.
However, we will not provide refunds if the Agreement or an Order Form is terminatedwithout cause. Without limiting other remedies it may have, either party may terminatethis Agreement or any Order Form immediately on notice if (i) the other party materiallybreaches the Agreement or an Order Form, and fails to cure the breach within thirty (30)days after receipt of notice of the breach; or (ii) the other party becomes insolvent. Upon
termination, the following will apply: (a) All licenses (except for fully-paid, perpetual
licenses) granted will terminate and you must stop using, de-install and permanently
delete all of the applicable Software, whether modified or merged into other materials; (b)All amounts due under any unpaid invoices will become due and payable immediately;and (c) If we are in breach, you will receive a prorated refund for any fees paid in
advance. We may suspend your use of the Software and as applicable without
terminating this Agreement during any period of material breach. We will give you
reasonable notice and a chance to cure the breach before suspending your use of the
Software and Support. Suspension will only be to the extent reasonably necessary until
the breach is cured. The parties' rights and obligations under this section and sections
entitled "Financial Terms", “Ownership”, "Confidentiality", “Warranty; Disclaimer”,“Limitation of Liability”, and "General" survive the termination of this Agreement and/or an
Order Form.
• GENERAL. (a) This Agreement, our Privacy Policy set forth athttps://www.xsql.com/privacy/ and any Order Forms or SOWs agreed to by you, in writing
or by your actions, constitutes the entire agreement between the Parties with respect to
the Software and supersedes any prior or contemporaneous understandings, oral or
written, and all other communications between the Parties. You acknowledge that you
have not relied on the availability of any future version of the Software or any future
product in executing this Agreement. Further, this Agreement may not be amended
except by a writing signed by both parties. Any inconsistent terms on Purchase Orders orother documents or portals regarding the Software, Professional Services or Support
provided under this Agreement issued by you, are for your internal use only, and any
provisions contained in any such document shall have no effect whatsoever upon thisAgreement. (b) A Party is not liable for non-performance of obligations under thisAgreement, if the non-performance is caused by events or conditions beyond that Party's
control, and the Party gives prompt notice and makes all reasonable efforts to perform. In
no event will this provision affect a Party’s obligation to make payments under thisAgreement. (c) Unless you notify us within ten days of the Effective Date of thisAgreement, we can include your name and/or logo in a public list of current customers
who use our Software, provided that (1) your name and/or logo is not highlighted anddoes not stand out in comparison to the names and/or logos of other customers; and (2)we don’t make any representation or attribute any endorsements to you without priorwritten consent. (d) This Agreement shall be binding upon and inure to the benefit of theParties hereto and their successors and assigns. You may not assign (whether voluntary
or involuntary or by merger, operation of law or change of control), delegate, novate orotherwise transfer your rights and obligations under this Agreement without our priorknowledge and written consent. (e) This Agreement shall be governed by the state ofGeorgia law, without regard to conflict of law provisions. The application of Uniform
Computer Information Transactions Act (UCITA), the Uniform Commercial Code (UCC) or
the United Nations Convention on Contracts for the International Sale of Goods is
expressly excluded. (f) The waiver or failure of a party to exercise in any respect any
rights provided for in this Agreement shall not be deemed a waiver of any further rightunder this Agreement. If any provision of this Agreement is declared by a court ofcompetent jurisdiction to be invalid, illegal or unenforceable, such provision shall besevered from this Agreement and the other provisions shall remain in full force and effect.
(g) You agree to defend, indemnify and hold us harmless from and against liabilities,
costs, damages and expenses (including settlement costs and reasonable attorney fees)
arising from any claims from anybody that result from or relate to you and your third
parties’ use, reproduction or distribution of any permitted Applications herein. (h) If youare a branch or agency of the U.S. Government, use, duplication or disclosure of the
Software is subject to the restrictions set forth in this Agreement except that thisAgreement shall be governed by federal law. Any additional rights or changes desired by
the U.S. Government shall be negotiated with us consistent with this Agreement. (i) Eachparty acknowledges its obligation to comply with all applicable laws, rules, statutes andregulations, including specifically but not limited to export laws including Bureau of Export
Administration restrictions and anti-corruption legislation. Each party warrants that, to thebest of its knowledge no money or other consideration of any kind paid or payable under
this Agreement or by separate Agreement is, has been or will be used for unlawful
purposes, including purposes violating anti-corruption laws, including making or causing
to be made payments to any employee of either party or anyone acting on their behalf toassist in obtaining or retaining business with, or directing business to, any person, or
securing any improper advantage. (j) We are an independent contractor and our
personnel are not and shall not be considered employees or agents of your company forany purpose whatsoever.
• DEFINITIONS. Some defined terms that you should be familiar with are: (a) Affiliates
means entities, regardless of corporate status, controlled by, controlling or under common
control with a party, respectively, or officers, directors, shareholders, employees or agentsof any of the foregoing. (b) Application means any application, program or other softwarethat you develop using the Software. An Application must represent a significant
functional and value enhancement to the Software. (c) Authorized User means one
named person, employee, contractor or temporary worker authorized by you to use theSoftware for personal use or while performing duties within the scope of their employment
or assignment. (d) Commercial means any use or handling of the Software by any personor entity for financial reasons, whether or not profitable. (e) Core means a core of a CPU
made up of an independent processor combined onto a single integrated circuit or siliconchip, in both virtualized and/or non-virtualized environments, and regardless of whether
used in a Production or Non-Production environment. (f) Desktop/Workstation means asingle physical machine, including but not limited to a personal computer, workstation,
laptop computer, desktop computer or mobile device, specifically excluding a Server, on
which the Software is loaded or executed, that is operated, either attended or via remote
access, by one person at a time, and cannot be used by more than one person, directly or
indirectly, simultaneously. (g) Developer means any named identifiable individual person,
not necessarily named at the time of a license grant, regardless of whether or not theindividual is actively using the Software at any given time, designated by you to do any of
the following: (1) build, compile, assemble, test or otherwise cause to be executed any
application programs that rely on the Software as a component; (2) use or execute any
Software programs for development, testing, or support purposes; (3) package orotherwise prepare Software components for redistribution as part of another program orapplication; or (4) have possession of any Software resources or files for any purposes
other than archiving. (h) Development Workstation means a physical computer owned orcontrolled by you that is accessed and used for software development and testing
purposes by only one (1) Developer and with respect to use of the Software does notparticipate in a shared development environment meaning software development
occurring in a network or computer infrastructure shared by multiple people; and/or
software development occurring on a computer that is not dedicated to use only by yourDeveloper. A Development Workstation may, for your Developer's sole use, host one ormore virtual machines containing the Software. (i) Instance means a loaded operating
system running either on a physical computer or within a virtual environment or anequivalent environment. Each virtual environment on a physical computer is deemed an
instance. (j) Machine means an attended or remotely controlled desktop, workstation orcomputer where the Software is loaded, that is operated by no more than one person at atime. (k) Non-Commercial means any use of the Software which (1) is not undertaken forprofit; (2) is not intended to produce software, works, services, or data for commercial
use; or (3) is neither conducted, or funded, by a person or an entity engaged in thecommercial use, application, development or exploitation of works similar to the Software.
(l) Non-Production means a non-operational environment into which the Software may beinstalled, which is not processing live data, which is not running any of your operations
and which has not been deployed to permit any users to access live data. Non-Production
environments include development, quality assurance and test environments. (m) Order
Form means any written order, whether in physical or electronic format, for Software,
Support or Professional Services, including any document issued by you requesting
Software, Support or Professional Services (“Purchase Order”), on-line orders, or otherform of an ordering document delivered to or made available to us through a medium orchannel approved by us, which is subject to, and incorporates by reference thisAgreement or other terms negotiated by the parties. (n) Production means an operational
environment into which the Software has been installed, which is processing live data andwhich has been deployed so that the intended users of the environment are able toaccess the live data. Production environments include disaster recovery, failover, andhigh availability environments. (o) Professional Services means consulting, development
or training services provided by us remotely via phone or the Internet. (p) Server means aphysical or virtual machine, which may be limited by a certain number of Cores as set
forth in an Order Form, which has a server operating system and/or where more than one
person can simultaneously use the computer either by direct or remote access. (q) Sitemeans the single physical location that corresponds to a single physical mailing address,
where your Developers are licensed to use the Software as designated in an Order Form.
(r) Software means our proprietary software as indicated on an Order Form which you
may install on equipment owned or operated by you or a third party on your behalf.