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Sencha Animator Software License Agreement

Sencha Animator Software License Agreement

Version 1.2

NOTICE TO USER: THIS LICENSE AGREEMENT GOVERNS INSTALLATION AND USE OF THE SOFTWARE DESCRIBED HEREIN BY LICENSEES OF SUCH SOFTWARE. LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND DURING REVIEW OF AN ELECTRONIC VERSION OF THIS LICENSE, OR DOWNLOADING, COPYING, INSTALLING OR USING THE SOFTWARE, LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT INSTALLS AND USES THE SOFTWARE AND ANY PERSON OR ENTITY THAT INSTALLS OR USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.

1. Definitions.

1.1 “Sencha” means Sencha Inc., a Delaware corporation, 1700 Seaport Blvd., Suite 120, Redwood City, CA 94063.

1.2 “Authorized Users” means employees and individual contractors (i.e., temporary employees) of Licensee.

1.3 “Computer” means one or more central processing units (“CPU”) in a hardware device (including hardware devices accessed by multiple users through a network (“Server”)) that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

1.4 “Designated User” shall mean a single distinct employee acting within the scope of their employment or Licensee’s consultant or contractor acting within the scope of the services he or she provides for Licensee or on Licensee’s behalf for whom Licensee has received a license to use the Software.

1.5 “Documentation” means the user manuals and/or technical publications as applicable, relating to installation, use and administration of the Software.

1.6 “Internal Network” means Licensee’s private, proprietary network resource accessible only by Authorized Users. “Internal Network” specifically excludes the Internet (as such term is commonly defined) or any other network community open to the public, including membership or subscription driven groups, associations or similar organizations. Connection by secure links such as VPN or dial up to Licensee’s Internal Network for the purpose of allowing Authorized Users to use the Software should be deemed use over an Internal Network.

1.7 “Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by Sencha.

1.8 “Production Software” means Software licensed for productive business use.

1.9 “Sample Code” means sample software in source code format designated in the Documentation as “sample code,” “samples,” “sample application code,” and/or “snippets,” and found in directories labeled “samples.”

1.10 “Software” means the object code version of the Sencha Animator including all Documentation and other materials provided by Sencha to Licensee under this Agreement. The license herein granted applies only to the version of the Software downloaded or installed in connection with the terms of this Agreement. This license does not grant a commercial license for Sencha Touch or Ext JS, which are licensed independently.

2. License.

2.1 License. Subject to the payment of the applicable fee, and subject to the terms and conditions of this Agreement, Sencha grants to Licensee a perpetual, non-exclusive, non-transferable license for Designated User(s) to use the Software delivered hereunder according to the terms and conditions of this Agreement, on computers connected to Licensee’s Internal Network, on the licensed platforms and configurations, in the manner and for the purposes described in the Documentation.

2.2 Sample Code. Licensee may modify the Sample Code solely for the purposes of designing, developing and testing Licensee’s own software applications. However, Licensee is permitted to use, copy and redistribute its modified Sample Code only if all of the following conditions are met: (a) Licensee includes Sencha’s copyright notice (if any) with Licensee’s application, including every location in which any other copyright notice appears in such application; and (b) Licensee does not otherwise use Sencha’s name, logos or other Sencha trademarks to market Licensee’s application. Licensee agrees to defend, indemnify, and hold Sencha and its suppliers harmless from and against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the use or distribution of the Sample Code, provided that Sencha gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of such a claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim.

2.3 Documentation. Licensee may make copies of the Documentation for use by Authorized Users in connection with use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Documentation.

2.4 Restrictions.

2.4.1 No Modifications, No Reverse Engineering. Licensee shall not modify, port, adapt or translate the Software. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Licensee shall not use any part of the Software or Licensee’s knowledge of the Software (or any information that Licensee learns as a result of Licensee’s use of the Software) to create a product with the same or substantially the same functionality as the Software;

2.4.2 No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Licensee on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Licensee as a single product to be used as a single product on Computers and platforms as permitted herein. Licensee is not required to use all component parts of the Software, but Licensee shall not unbundle any component parts of the Software for use on different Computers. Licensee shall not unbundle or repackage the Software for distribution, transfer or resale.

2.4.3 No Transfer. Licensee shall not sublicense, assign or transfer the Software or Licensee’s rights in the Software, or authorize any portion of the Software to be copied onto or accessed from another individual’s or entity’s Computer except as may be explicitly provided in this Agreement. Notwithstanding anything to the contrary in this Section, Licensee may transfer copies of the Software installed on one of Licensee’s Computers to another one of Licensee’s Computers provided that the resulting installation and use of the Software is in accordance with the terms of this Agreement and does not cause Licensee to exceed Licensee’s right to use the Software under this Agreement.

2.4.4 Prohibited Use. Except as expressly authorized under this Agreement, Licensee is prohibited from: (a) renting, leasing, lending or granting other rights in the Software including rights on a membership or subscription basis; and (b) providing use of the Software in a computer service business, third party outsourcing facility or service, service bureau arrangement, network, or time sharing basis.

2.4.5 Export Rules. Licensee agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as an export controlled item under the Export Laws, Licensee represents and warrants that Licensee is not a citizen of, or located within, an embargoed or otherwise restricted nation (including Iran, Iraq, Syria, Sudan, Libya, Cuba and North Korea) and that Licensee is not otherwise prohibited under the Export Laws from receiving the Software. All rights to install and use the Software are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement.

2.4.6 Additional Software. Licensee is not permitted to use any software applications or components accompanying or installed with the Software unless Licensee is validly licensed to do so and only to the extent explicitly permitted under this Agreement or a separate writing. Any licenses granted hereunder do not alter any rights and obligations Licensee may have under the terms and conditions governing such other materials and services, provided, however, that the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all Software provided hereunder. By accessing and/or using any such other materials, Licensee hereby agrees to the applicable separate license agreements that apply to such other materials.

3. Evaluation Software.

This Section applies only if Licensee has obtained a valid license to evaluate the Software as separately provided in writing by Sencha or as indicated by the Software when first executed.

3.1 License. In addition to the other terms contained herein, Licensee’s license to evaluate the Software is limited to use strictly for Licensee’s own internal evaluation and review purposes and not for production purposes, and is further limited to a period not to exceed thirty (30) days from the date Licensee obtains the Software, unless such period of time is extended by Sencha, in which case, such period shall not exceed the expiration date of such extended period. Licensee may (a) install the Software on one (1) computer connected to Licensee’s Internal Network, and (b) permit Authorized Users to use the Software to deliver content within Licensee’s Internal Network.

3.2 Limitations. Licensee acknowledges that as evaluation software, the Software might place watermarks on output, contain limited functionality, or cease operations after a designated period of time unless extended by Sencha upon Licensee’s acquisition of a full commercial license. Licensee’s rights to install and use Software under this Section will terminate immediately upon the earlier of (a) the expiration of the evaluation period described herein, or (b) such time that Licensee purchases a license to a non-evaluation version of such Software. Sencha reserves the right to terminate Licensee’s license to evaluate Software at any time in its sole discretion. Licensee agrees to return or destroy Licensee’s copy of the Software upon termination of this Agreement for any reason. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the evaluation of Software, but only to the extent necessary to resolve the conflict.

LICENSEE ACKNOWLEDGES THAT THE EVALUATION SOFTWARE MIGHT PLACE WATERMARKS ON OUTPUT, CONTAIN LIMITED FUNCTIONALITY, OR FUNCTION FOR A LIMITED PERIOD OF TIME, AND ACCESS TO ANY FILES OR OUTPUT CREATED WITH SUCH SOFTWARE OR ANY PRODUCT ASSOCIATED WITH SUCH SOFTWARE IS ENTIRELY AT LICENSEE’S OWN RISK. SENCHA IS LICENSING THE SOFTWARE FOR EVALUATION ON AN “AS IS” BASIS AT LICENSEE’S OWN RISK. SENCHA DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO LICENSEE OF ANY KIND.

4. Intellectual Property Rights.

The Software and any copies that Licensee is authorized by Sencha to make are the intellectual property of and are owned by Sencha. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Sencha. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant Licensee any intellectual property rights in the Software and all rights not expressly granted are reserved by Sencha. Further, the License granted by this Agreement does not impart any rights or license in or to any other products of Sencha, including the Ext JS Javacript library.

5. DISCLAIMER OF WARRANTIES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SENCHA AND SENCHA’S SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. SENCHA DOES NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND LICENSEE ACKNOWLEDGE STHAT IT IS NOT TECHNICALLY PRACTICABLE FOR SENCHA TO DO SO.

6. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SENCHA OR SENCHA’S SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LAW) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SENCHA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SENCHA’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE.

7. Termination.

This Agreement and Licensee’s right to use the Software will terminate immediately without notice if Licensee fails to comply with the terms and conditions of this Agreement. Upon termination, Licensee agrees to immediately cease using and destroy the Software, including all accompanying Documentation. The provisions of sections 2.3, 4, 5, 6, 8 and 10 will survive any termination of this Agreement.

8. General Provisions.

If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. Updates may be licensed to Licensee by Sencha with additional or different terms. This is the entire agreement between Sencha and Licensee relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. Licensee agrees to be identified as a customer of Sencha and agrees that Sencha may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee’s business or disclose any feedback or commentary provided by Licensee. Licensee further authorizes any development by Sencha on the basis of feedback or commentary provided by Licensee. This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in the State of California.

9. Notice to U.S. Government End Users.

9.1 Commercial Items. The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Sencha JS, Inc.

9.2 U.S. Government Licensing of the Sofware. Licensee agrees that when licensing Sencha Software for acquisition by the U.S. Government, or any contractor therefore, Licensee will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227-7202-1 and 227-7202-4 (for the Department of Defense). For U.S. Government End Users, Sencha agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741.

10. Compliance with Licenses.

Sencha reserves the right, at its expense, and no more than once every twelve (12) months, to appoint its own personnel or an independent third party to verify the number of copies and installations as well as usage of the Sencha software in use by Licensee. Any such verification shall be conducted upon seven (7) business days notice, during regular business hours at Licensee’s offices and shall not unreasonably interfere with Licensee’s business activities. Both Sencha and its auditors shall execute a commercially reasonable non-disclosure agreement with Licensee before proceeding with the verification. If such verification shows that Licensee is using a greater number of copies of the Software than that legitimately licensed, or are deploying or using the Software in any way not permitted under this Agreement and which would require additional license fees, Licensee shall pay the applicable fees for such additional copies within thirty (30) days of invoice date, with such underpaid fees being the license fees as per Sencha’s then-current license fee. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under this Agreement, then Licensee shall pay such underpaid fees and Sencha’s reasonable costs of conducting the verification. This Section shall survive expiration or termination of this Agreement for a period of two (2) years.