Pervasive Software Inc.
PERVASIVE SOFTWARE, INC. ("PERVASIVE") PROVIDES THIS SITE AND RELATED SERVICES (COLLECTIVELY, "SITE") SUBJECT TO YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS SET FORTH BELOW AND THE RULES THAT MAY BE PUBLISHED FROM TIME TO TIME BY PERVASIVE. PERVASIVE RESERVES THE RIGHT TO CHANGE THE NATURE OF THIS RELATIONSHIP AT ANY TIME, AND TO PROVIDE NOTICE OF SUCH RELATIONSHIP OR RULE CHANGES TO OUR CURRENT USERS (AS DEFINED BELOW) BY E-MAIL TEN DAYS PRIOR TO THE CHANGES TAKING EFFECT. USERS WHO VIOLATE THE TERMS OF THIS AGREEMENT MAY PERMANENTLY BE BANNED FROM USING THIS SITE. USING THIS SITE WILL CONSTITUTE ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS, PLEASE DO NOT USE OR ENTER THIS SITE. YOU AGREE THAT ALL INFORMATION THAT YOU PROVIDE TO PERVASIVE WILL BE ACCURATE, COMPLETE AND CURRENT. PLEASE READ THE FOLLOWING INFORMATION CAREFULLY:
PERVASIVE HAS A POLICY OF TERMINATING THE ACCESS TO OR USE OF THE SITE BY INFRINGERS AND REMOVING INFRINGING MATERIAL OR CONTENT. IF YOU HAVE AN ALLEGATION OF INFRINGEMENT REGARDING SOMETHING POSTED ON THIS SITE PLEASE NOTIFY THE WEBMASTER, webmaster@pervasive.com
TRADEMARK NOTICE
"Pervasive", _____________ logo and __________are trademarks and service marks of Pervasive Software Inc. All other trademarks, service marks and logos used in this Site the trademarks, service marks or logos of their respective owners.
WARRANTY INFORMATION
THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT, OR ANY PRODUCT OR SERVICE LICENSED OR PURCHASED THROUGH THE SITE, OR ANY SOFTWARE DOWNLOADED FROM THE SITE, IS PROVIDED "AS IS" WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM BUGS, CORRECTNESS, ACCURACY, RELIABILITY AND NONINFRINGEMENT. PERVASIVE MAKES NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES PERVASIVE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU UNDERSTAND AND AGREE THAT ANY CONTENT (PROVIDED BY OTHERS OR BY YOU) DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT. YOU ALSO ACKNOWLEDGE THAT YOUR ACCESS TO THE SITE WILL NOT BE FREE OF INTERRUPTIONS. YOU ACKNOWLEDGE THAT ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY OF THE PRODUCTS OR SERVICES DESCRIBED HEREIN IS PROVIDED SOLELY BY THE OWNER, ADVERTISER OR MANUFACTURER OF THAT PRODUCT AND/OR SERVICE, AND NOT BY PERVASIVE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE.
NOTWITHSTANDING ANTHING ELSE TO THE CONTRARY, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER PERVASIVE NOR ITS SPONSORS ARE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SERVICES AND/OR CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, OR WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, OR TERMS AND CONDITIONS RELATED THERETO, EVEN IF PERVASIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, AND/OR CONTENT OR INFORMATION CONTAINED WITHIN THE SITE IS TO STOP USING THE SITE AND/OR THOSE SERVICES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
A possibility exists that the Site could include inaccuracies or errors. Additionally, a possibility exists that unauthorized additions, deletions and alterations could be made by third parties to the Site. Although Pervasive attempts to ensure the integrity and the accurateness of the Site, it makes no guarantees whatsoever as to the correctness or accuracy of the Site and has no responsibility or liability therefore.
ACKNOWLEDGMENT
This Site may contain links to other Web sites operated by third parties ("Linked Sites"). You acknowledge that, when you click on a link to visit a Linked Site, a frame may appear that contains the Pervasive logo, advertisements and/or other content selected by Pervasive. You acknowledge that Pervasive and its sponsors neither endorse nor are affiliated with the Linked Site and are not responsible for any content that appears on the Linked Site. You also acknowledge that the owner of the Linked Site neither endorses nor is affiliated with Pervasive and its sponsors.
VOID WHERE PROHIBITED AND INDEMNITY
Although the Site is accessible worldwide, not all Pervasive products or services discussed or referenced in the Site are available to all persons or in all geographic locations or jurisdictions. Pervasive reserves the right to limit the provision of any Pervasive product or service to any person, geographic area or jurisdiction it so desires. You agree to indemnify, defend and hold harmless Pervasive, and its sponsors, directors, officers, affiliates, subsidiaries, agents, representatives, contractors, or employees against any and all claims, damages, costs or other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement, (b) your violation of the Code of Conduct, (c) your activities in connection with the Site and/or (d) any subject matter in connection with this Agreement.
CODE OF CONDUCT
You are entirely liable for all activities conducted on this Site. Listed below are some, though not all, violations which may result in Pervasive terminating your access to this Site. While using the Site, you agree not to:
- Restrict or inhibit any other user from using and enjoying the Site and services;
- Post or transmit any information or software that contains a virus, worm, trojan horse or other harmful or disruptive component; or
- Post or transmit materials in violation of another party’s copyright or intellectual property rights.
- Harass, threaten, embarrass or cause distress or discomfort upon another subscriber, user, or other individual or entity ("User") using or accessing the Site;
- Post or transmit via the Site any Content (as defined below) that Pervasive considers to be unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, libelous, obscene, hateful, racially, ethnically or otherwise objectionable or harmful;
- Impersonate any person, including but not limited to, another user, host or guest;
- Post or transmit any unsolicited advertising, promotional materials, or any other forms of commercial solicitation to other Users;
- Intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law while using or accessing the Site or in connection with your use of the Site in any manner;
- Cause any disruptive effect on Site technology or course of dialogue such that other Users are unable or prevented from participating in a normal flow of conversation on the Site;
Pervasive has no obligation to monitor the Site. However, you acknowledge and agree that Pervasive has the right to monitor the Site and to disclose any information necessary to operate the Site properly, to protect itself and its sponsors and customers and to comply with legal obligations or governmental requests. Pervasive reserves the right to refuse to post or to remove in its sole discretion any information or materials, in whole or in part, that are unacceptable to Pervasive, offensive or in violation of this Agreement. Pervasive also reserves the right in Pervasive’s sole discretion, to prohibit any User who violates the Code of Conduct or other terms of this Agreement from using the Site. Such prohibition may occur without notice to the User. Pervasive may elect at its sole discretion to monitor some, all, or no areas of the Site for adherence to this Agreement and Pervasive rules. You acknowledge that by providing you with the ability to distribute your postings, Pervasive is acting as a passive conduit for such distribution.
TERMINATION
You or Pervasive may terminate your right to access or use the Site at any time for any reason ("Termination Event"). Once a Termination Event occurs, you cannot access the Site in any manner or for any reason without the express written consent of Pervasive, and you cannot assist in enabling a terminated User to access or use the Site. You acknowledge that if Pervasive believes, in its sole discretion, that any User’s postings on or participation in the Site may create liability for Pervasive, Pervasive reserves the right to take actions that it believes are prudent or necessary to minimize or eliminate potential liability, including without limitation terminating your right to access or use the Site.
SUBMISSIONS
You acknowledge and agree that, by submitting any resource, data, text, files, software, link, applet, information, content or other materials (collectively, "Content") to Pervasive, you grant to Pervasive a perpetual, nonexclusive, irrevocable, worldwide, royalty-free, sub licensable right and license to fully exploit including, without limitation, use, copy, make, modify, make derivative works of, develop, perform, display, sell, distribute (directly or indirectly), lease, and import and exercise all industrial and intellectual property rights with respect to the Content. Further, by submitting Content to Pervasive, you represent, warrant, and covenant that you have the authority to grant such rights and license to Pervasive. You warrant, represent, and covenant that you shall only upload to the site, or otherwise transmit on or through Content that is not protected or subject to any party’s patent, trademark, copyright or other proprietary rights ("Right"), or Content in which all holders of Rights have given express authorization for distribution on the site. If the submitted Content includes or consists of a Java(TM) applet or other software resource, the license granted to Pervasive shall apply to both object code and source code formats of the applet or resource, and Pervasive shall have the right under its license to analyze, report on, summarize, and display the source code on it web sites, however Pervasive will not display the complete source code of your resource unless you grant Pervasive express permission to do so in the Resource Submission or Resource Update forms. If you submit a resource to Pervasive and/or you grant Pervasive permission to display your source code and decide that you no longer want to grant Pervasive permission to display your source code, Pervasive will remove the resource and/or the source code from our site(s), provided, however, that you write to: "Pervasive Software Inc., 12365 Riata Trace Parkway, Building II, Austin, Texas 78727Attn: Developer Site Editor", by certified mail, to request that the resource and/or the source code to any applet or software resource submitted by you be removed from an Pervasive web site. Upon receipt of such certified mail notification, Pervasive will use its reasonable commercial efforts to remove such resource and/or source code from its web site(s).
COMPLIANCE WITH LAWS (INCLUDING EXPORT LAWS)
You shall not upload, download, transmit, export, or allow the export or reexport of any encryption-related technology or information in connection with the Site, including but not limited to encrypted software. You shall comply with, and shall, at Pervasive’s request, demonstrate such compliance with, the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions, and regulations of the U.S. Department of Commerce, the U.S. Department of Treasury and any other U.S. and foreign agency or authority. You will not download, upload, transmit, export, or allow the export or re-export of anything in connection with the Site, including but not limited to Content, in violation of any such laws, restrictions or regulations, including, without limitation, export or re-export to Cuba, Iran, Iraq, Libya, North Korea and other countries subject to U.S. trade embargoes, parties on the U.S. Export Administration Table of Denial Orders and the U.S. Department of Treasury List of Specially Designated Nationals, and prohibited destinations in any of the Country Groups specified in the then current Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations). You shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of anything in connection with the Site, including but not limited to Content, to any location with all applicable laws and regulations prior to delivery thereof by Pervasive. If you are involved in a transaction that gives you reason to suspect that anything in connection with the Site, including but not limited to Content, will be downloaded, uploaded, transmitted, exported, re-exported, or diverted in violation of any such laws, restrictions or regulations (including, without limitation, knowledge of Content, end user, abnormal transaction circumstances, and other Bureau of Export Administration "red flag" indicators), then you will take appropriate steps to terminate such transaction, notify the correct U.S. agency, and give notice to Pervasive.
MISCELLANEOUS
This Agreement is entered into in the State of Texas and shall be governed by and construed in accordance with the laws of the State of Texas, exclusive of its choice of law rules. Unless otherwise elected by Pervasive in writing for a particular instance (which Pervasive may do at its option), the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts having within their jurisdiction Austin, Texas. Each party to this Agreement hereby submits to the exclusive jurisdiction of the state and federal courts sitting in the Austin, Texas, and waives any jurisdictional, venue or inconvenient forum objections to such courts. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly canceled. This Agreement may be supplemented or modified by any license or other agreement with Pervasive in connection with any Pervasive software or other product that you download, license or purchase through this Site ("Other Agreements"). Except with respect to such Other Agreements, any modifications of this Agreement must be in writing and signed by both parties hereto, except that Pervasive may modify the terms of this Agreement by sending notice to you via e-mail (at the most current e-mail address for you in Pervasive’s records) fourteen (14) days in advance of the date on which such modification takes effect or by posting notice of such modification on a page of the Site entitled "Legal Notices" or "Legal Information" at least fourteen (14) days before the modification takes effect.
WHAT TO DO
If you witness activities, events or postings on the Site that violate this Agreement or Pervasive rules then in effect, please email the offending person’s identification and cut and paste the relevant content into an email to chris.kauffman@pervasive.com. Please refer to this Agreement from time to time for any updates Pervasive may make to this Agreement and to Pervasive rules.