Disavowal disavowal (annotated)

Borland just posted a new license agreement for the Diamondback preview.

My disavowal is hereby disavowed. I don’t know what I was talking about when I wrote that.

Of course, I could decide to be paranoid, and say that they can’t actually change the license agreement, since the first one was very clear about being the entire, final and exclusive agreement (clause 9.4) between me and Borland, and no provision was made for amending it, even in writing. But… I won’t.

You guys might want to think about dropping that “entire, final and exclusive” bit, though. Mistakes do get made from time to time, and it’s nice to give yourself a way to correct them. 😛

Here are the diffs between the two licenses, in case anyone’s interested.


BORLAND SOFTWARE CORPORATION EXPERIMENTAL TEST SOFTWARE LICENSE TERMS

BORLAND DIAMONDBACK FIELD TEST PREVIEW

NOTICE: THIS BORLAND SOFTWARE PRODUCT (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, THE “PRODUCT”) IS THE PROPERTY OF BORLAND SOFTWARE CORPORATION (“BORLAND”). THE PRODUCT IS MADE AVAILABLE TO YOU, SUBJECT TO THE FOLLOWING LICENSE AGREEMENT (“LICENSE”). PLEASE READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR USING THE PRODUCT. A COPY OF THIS LICENSE IS AVAILABLE FOR YOUR FUTURE REFERENCE IN THE “LICENSE.RTF” FILE PROVIDED WITH THE PRODUCT.

YOU MAY ACCEPT THIS LICENSE BY CLICKING THE “YES” BUTTON BELOW. YOU MAY REJECT THIS LICENSE, AND TERMINATE THIS INSTALLATION PROCESS, BY CLICKING THE “NO” BUTTON BELOW. IF YOU DO NOT ACCEPT THIS LICENSE, THEN YOU MAY NOT INSTALL OR USE THE PRODUCT. ANY USE BY YOU OF THIS PRODUCT ALSO CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.

You have received this Product because you have been invited to participate in the field test program (the”Beta Program”) for Borland’s pre-release software preview this Product in pre-release form. Borland is only willing to grant you this License if you obtained the Product from Borland. If you obtained the Product from any other source you may not install or use the Product.

If you and Borland have entered into a properly executed written field test license and non-disclosure agreement relating to the field testing of this Product (the “Non-disclosure Agreement”) then the terms of any such Non-disclosure Agreement shall control over any conflicting terms herein control, with respect to that field test, over any conflicting terms herein, and this License shall control, with respect to the Product obtained hereunder.

1. OWNERSHIP. The Product is proprietary to Borland. The Product is licensed, not sold, to you notwithstanding any reference herein to “purchases.” You acknowledge and agree that: (a) the Product is protected under U.S. copyright and other laws; (b) Borland and its licensors retain all copyrights and other intellectual property rights in the Product; (c) there are no implied licenses under this License, and any rights not expressly granted to you hereunder are reserved by Borland; (d) you acquire no ownership or other interest (other than your license rights) in or to the Product; and (e) Borland owns all copies of the Product, however made. You agree that you will not, at any time, contest anywhere in the world Borland’s ownership of the Product, nor will you challenge the validity of Borland’s rights in the Product. You have no rights hereunder to use any trademark or service mark belonging to Borland.

2. GRANT OF LICENSE AND SCOPE OF USE.

2.1 Grant of License. Subject to the terms and conditions of this License, Borland, for a limited time (the “Evaluation Period”), after which the Product will no longer operate, grants to you, if you are an individual, or, if you are an entity, one (1) designated person in your organization (“Named User”) a personal, nonexclusive, nontransferable and limited license to use the Product solely to create, compile (including byte code compile), and test, in source or object code form, your own application programs and other works (“Works”) for the sole purposes of evaluating the Product for the purpose of providing feedback to Borland and to develop and test the compatibility of your Works or systems which will operate in conjunction with the Product on the computer on which you have installed the Product, but you do not have a right to distribute or otherwise share those Works that you write or compile or any files of the Product which may be required to support those applications. All rights not specifically granted to you herein are retained by Borland. THE PRODUCT CONTAINS A TIME-OUT FEATURE THAT DISABLES ITS OPERATION AFTER THE EXPIRATION OF THE EVALUATION PERIOD. WORKS THAT YOU CREATE MAY REQUIRE THE PRODUCT IN ORDER TO RUN. UPON EXPIRATION OF THE EVALUATION PERIOD, THOSE APPLICATIONS MAY NO LONGER RUN. You should therefore take precautions to avoid any loss of data that might result.

At the end of the Evaluation Period, further use of the Product by you is prohibited. If you desire to continue to use the Product following the Evaluation Period, you should inquire with Borland or a Borland authorized reseller as to the availability of a final release of the Product.

2.2 Redistributables. The Product may include certain files, libraries and/or source code specifically designated as “redistributables” by Borland in the accompanying printed or on- line documentation and that are necessary to use Works created using the Product (“Redistributables”). From time to time, Borland may designate other files as Redistributables. You may not redistribute the Redistributables or otherwise provide such Redistributables to third parties.

2.3 Feedback. You agree to provide reasonable feedback about the Product to Borland, including but not limited to usability, bug reports and test results. You will use reasonable efforts to review and comment on all documentation supplied. All test results, bug reports and other feedback provided to Borland by You shall be the property of Borland and may be used by Borland for any purpose. Due to the nature of the development work, Borland provides no assurance that any specific errors or discrepancies in the Product will be corrected.

3. LIMITATIONS. You may not: (a) modify, adapt, alter, translate, or create derivative works of the Product or merge the Product with other software other than as described in the Product’s accompanying documentation or as approved of in writing by Borland; (b) lease, rent or loan the Product to any third party; (c) sublicense, distribute or otherwise transfer the Product or any component thereof to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Product; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Borland or its suppliers on the Product; (f) allow third parties to access or use the Product including but not limited to in a time-sharing arrangement or operate the Product as part of a service bureau or, otherwise for the use or benefit of third parties; (g) reproduce or use the Product except as expressly authorized under Section 2; or (h) disclose or publish performance benchmark results for the Product. The rights granted under this License apply only to this Product. You must procure a separate license to use other Borland software. The limitations in this Section 3 apply equally to your use of the Product, in whole or in part, including any component or Redistributable.

4 DISCLAIMER OF WARRANTY. BORLAND MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THIS PRODUCT OR ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE PRODUCT, FOR ANY PURPOSE. THE PRODUCT IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. BORLAND HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE PRODUCT WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK FOR THE RESULTS OBTAINED USING THE PRODUCT. TO THE EXTENT THAT BORLAND MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

5. SERVICES; UPDATES; PRODUCT CHANGES. Borland is not required under this License to provide any installation, training or other services to you. BORLAND WILL NOT SUPPORT THIS SOFTWARE AND IS UNDER NO OBLIGATION TO ISSUE UPDATES TO THIS SOFTWARE. Borland reserves the right at any time not to release or to discontinue release of any Product (including a commercial release) and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Product. In no event shall Borland be obligated to provide you a copy of the commercial release version of any Product in connection with your participation in the Beta Program or this License preview of this pre-release software.

6. CONFIDENTIALITY. You acknowledge that the Product including its existence and features, and related information remains a confidential trade secret of Borland. You agree to hold this information in confidence, not disclose it to any person, and not use it for any purpose other than the use and operation of the Product as permitted under this License. If you are an entity, you may disclose Products only to your employees who have a need to know in order to accomplish the purposes identified in Section 2.1 and if you have written nondisclosure or confidentiality agreements with your employees sufficient to enable you to comply with the terms of this License. All such use by your employees shall take place solely at your site. [Not in use]

7. LIMITATION OF LIABILITY. IN NO EVENT WILL BORLAND BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR DATA, ARISING FROM OR RELATING TO THIS LICENSE OR THE PRODUCT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF BORLAND KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BORLAND’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LICENSE OR THE PRODUCT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS LICENSE OR $5 WHICHEVER IS GREATER. THIS SECTION 10 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

8. TERM AND TERMINATION.

8.1 Term. The term of this License will begin as of the date that you receive the Product and will remain in effect until the end of one year after the last date you received the Product or the commercial release of the Product, the Evaluation Period (as displayed in the startup screen) or December 31, 2004, which ever occurs first, unless earlier terminated under this Section 8.

8.2 Termination for Convenience. You may terminate this License for any reason, or for no reason, by giving Borland five (5) days’ written notice. Borland may terminate this License for any reason, or for no reason upon written notice to you.

8.3 Termination for Cause. Borland may terminate this License if you breach your obligations hereunder. Borland will effect such termination by giving you notice of termination, specifying therein the alleged breach.

8.4 Effect of Termination. Upon the termination of this License for any reason the following terms shall apply: (a) all rights granted under this License will immediately terminate and you must stop all use of the Product and any Redistributables; (b) you must return to Borland or destroy all copies of the Product provided to or made by you, and will, within ten (10) days after the effective date of termination, provide Borland with written certification that all such copies have been returned or destroyed; and (c) all provisions of this License with the exception of the licenses granted in Section 2 will survive termination of this License for any reason.

9. GENERAL PROVISIONS.

9.1 Canadian Transactions. If you are subject to Canadian law, you agree to the following:

The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language. / Les parties aux presentes ont expressement exige que la presente Convention et ses Annexes soient redigees en langue anglaise.

9.2 Hazardous Uses. The Product is not intended for use, and you may not use or allow others to use the Product, in connection with any application requiring fail-safe performance such as the operation of nuclear power facilities, air traffic control or navigation systems, weapons control systems, life support systems, or any other system whose failure could lead to injury, death, environmental damage or mass destruction. You agree that Borland will have no liability of any nature, and you are solely responsible, for any expense, loss, injury or damage incurred as a result of such use of the Product.

9.3 Governing Law. This License will be governed by and construed in accordance with the laws of the United States and the State of California, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable).

9.4 Entire License; Severability. This License constitutes the entire, final and exclusive agreement between you and Borland regarding the specific license transaction described herein. If any provision of this License is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this License will remain in full force and effect.

9.5 Assignment. You may not transfer the Product media, assign this License or assign any of your rights or delegate any of your obligations under this License, by operation of law or otherwise (including by merger, sale of assets or consolidation), without Borland’s prior written consent. Any attempted assignment in violation of this Section 8.5 will be void.

9.6 Export Control. You may not directly or indirectly transfer the Product, including its documentation, to any country if such transfer would be prohibited by applicable law, including the U.S. Export Administration Act and the regulations issued thereunder. You agree to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country. You will be solely responsible for identifying and complying with all laws of any jurisdiction outside of the United States regarding the import, export or use of Products and technical data supplied by Borland. You will obtain at your own expense all licenses, permits or approvals required by any government to use the Product.

9.7 U.S. Government Rights. The Product is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product with only those rights set forth in this License.

9.8 Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this License on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. This License may only be amended by a written document signed by both parties.

If you have any questions about this License, please contact Borland. If you agree to the terms and conditions of this License Agreement, please click the “YES” button below. This will be the legal equivalent of your signature on a written contract and the terms of this license shall be a legally binding agreement between you and Borland. You must agree to these terms and conditions in order to install and use the Product. If you do not agree with these terms and conditions, you should click the “NO” button below to exit this installation process, as Borland is unwilling to license the Product to you in such case, and you may return the Product within ten (10) days after you first received it to Borland.

Borland Software Corporation 100 Enterprise Way
Scotts Valley, CA 95066-3249

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