Checkout By checking out and purchasing a license, you agree to the Caucho Developer Source License. Caucho Developer Source License (Version 1.3) Caucho Technology, Inc. ("Caucho") permits use of software as specifically identified in your License Certificate and Documentation ("Software") provided that all of the conditions of the Caucho Developer Source License ("License Agreement") are met: 1. You must not alter or remove any copyright or trademark notices in the Software. 2. You may use the Software to (a) develop applications; (b) evaluate applications (during testing or proof of concept stage); (c) demonstrate applications; and (d) deploy in production environment. 3. You shall not deploy the Software on any physical CPU sockets, virtual cores, logical cores, and/or other physical/virtual units except as expressly authorized by your purchased License Certificate. You are eligible to receive version upgrades that are made available by Caucho during the term of your license. Nothing herein shall be construed to require Caucho to create any patches or version upgrades. 4. Caucho reserves all rights to the Software not explicitly granted by the License Agreement, and licensee disclaims any and all interest therein. Licensee expressly acknowledges that Caucho reserves all rights, title and interest to the trademarks “Resin”, “Quercus”, “Amber”, “Hessian”, “BAM”, “JAMM” and “Powered by Resin”, and expressly disclaims any and all interest therein. Licensee may only use Caucho’s trademarks and logos in strict compliance with the Terms and Conditions set forth in Caucho’s Trademark and Logo Usage Guidelines presently located at: http://www.caucho.com/about/partners/caucho_trademark_logo-guidelines/. 5. The term of this license shall be that certain term set forth in your purchased License Certificate. You expressly agree and acknowledge that any use of the Software after the term of this License Agreement expires (or is otherwise terminated) constitutes a violation of Caucho’s copyright in the Software. Furthermore, you expressly agree and acknowledge that any use of the Software not specifically authorized by this License Agreement constitutes a violation of Caucho’s copyright in the Software. 6. Each copy of the Software in source or binary form must include an unmodified copy of the License Agreement in a plain ASCII text file named CAUCHO DEVELOPER SOURCE LICENSE AGREEMENT – VERSION 1.3. 7. If you create any improvements or modifications to the Software, you agree to assign all rights, title and interest in such improvements or modifications to Caucho forthwith, and you shall execute all documents reasonably required to effectuate any such assignment. 8. The License Agreement will terminate immediately without notice from Caucho if you fail to comply with any provision or condition of the License Agreement. Notwithstanding the forgoing any terms and conditions of this agreement that would by their nature survive the expiration or termination of this agreement (e.g., Sections: 4, 5, 7, 9, 11) shall so survive. Upon termination, you must destroy any or all copies and derived works of the Software. 9. You acknowledge that you are solely responsible for the use you make of the Software. Accordingly, you agree to indemnify, defend and hold Caucho harmless from and against any and all demands, claims, or suits by third parties for loss, damages or expenses (including attorneys' fees) arising out of, or related to, use of the Software by you or any other individuals or entities whose use of the Software you have (actually or putatively) authorized or permitted. 10. The Software is provided "AS IS," without warranty of any kind. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT PERMISSABLE BY LAW. 11. CAUCHO AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY YOU OR ANY THIRD PARTY AS A RESULT OF USING OR DISTRIBUTING THE SOFTWARE. IN NO EVENT WILL CAUCHO TECHNOLOGY OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF CAUCHO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 12. The parties expressly agree and acknowledge that this License Agreement has been entered into in the County of San Diego, State of California, United States of America. Except to the extent preempted by United States federal law, any action related to the License Agreement shall be governed by California law and a California court (state or federal as appropriate) situated in San Diego County shall exercise exclusive jurisdiction over any legal action instituted to enforce any right or obligation arising from this License Agreement. You expressly agree to personal jurisdiction in the State of California for any such legal action. 13. No breach by Caucho of any support obligations shall serve to waive, forfeit, terminate or otherwise release any of Licensee’s obligations or representations memorialized in this Agreement including, without limitation, Licensee’s obligations and representations set forth in Sections: 1, 3, 4, 5, 7, 9, 11. 14. Severability. If any provision(s) of this License Agreement is held to be invalid, void or unenforceable under any applicable statute or rule of law, it shall be deemed omitted to that extent and all of the remaining portions of this License Agreement shall remain fully valid and enforceable. 15. Modifications and Term Waivers. This License Agreement may be amended or modified only by a written agreement signed by the party to be charged with the modification and/or amendment. No waiver of any condition or term herein shall be effective unless it is embodied in writing signed by the Party against whom the waiver is charged. A waiver by either party of any term or condition of this License Agreement in any instance shall not be deemed or construed to be a waiver of such term or condition for the future or any subsequent breach thereof. 16. The prevailing party in any action arising out of an alleged breach of this License Agreement shall be entitled to an award of reasonable attorneys’ fees and costs incurred in connection with any such action in addition to all other remedies otherwise available to the prevailing party. 17. Licensee acknowledges that Caucho may be irreparably damaged by any unauthorized use of the Software or other material breach of this License Agreement. Without prejudice to the rights and remedies otherwise available to Caucho, Licensee expressly agrees that Caucho shall be entitled to seek equitable relief, including an injunction or specific performance, against Licensee in the event Licensee breaches any provisions, terms or conditions of this License Agreement. In the event Caucho exercises its right to seek an injunction against Licensee pursuant to this paragraph, Licensee agrees that Caucho shall have no obligation to post any bond or other security in connection with said injunction. 18. You expressly acknowledge that you have had ample opportunity to consult with attorneys of your own choosing prior to entering into this Agreement. You further acknowledge and agree that you have either done so, or that you have affirmatively and knowingly waived your right and opportunity to do so. It is hereby further agreed and acknowledged that this Agreement shall be deemed to have been mutually drafted, and that in the event that any ambiguities are determined to exist in this Agreement, they will not be construed against any one party, but instead they shall be construed according to a reasonable interpretation of the words in question given the nature of this transaction and the context of the words herein. 19. Taxes. Licensee shall pay all taxes, duties and assessments imposed on Licensee or Caucho in connection with the permitted use of the Software under this Agreement or for any services provided hereunder for which payment is made to Licensee, including without limitation all sales, use, value added, customs, excise and other taxes and duties, excluding only income taxes imposed on Caucho. 20. Entire Agreement. This Agreement represents the full, complete and entire agreement between the parties. With the exception of any pre-existing Non-Disclosure Agreements executed by the Parties, this Agreement shall supersede all prior agreements (whether written or oral) with respect to matters contemplated by this Agreement. The terms and conditions of this Agreement shall prevail in the event of any variance or conflict with any purchase order or invoice produced by Caucho or Licensee.