“Application” means any software, application, or elements that Your Designated Users develop using the Source Software or Modifications in accordance with this License Agreement; provided that any such Application (i) must have substantially different functionality than the Source Software, and (ii) must not allow any third party to use the Source Software or Modifications, or any portion thereof, for software development or application development purposes.
“Designated User” shall mean a single distinct person for whom You have purchased a license to use the Software, whether such person is an employee acting within the scope of their employment with You or Your consultant or contractor acting within the scope of the services they provide for You. A Designated User can be replaced with a new Designated User only after being a Designated User for a minimum of six (6) months. An assigned Designated User must be the same assigned Designated user across all products included in the Software.
“End User” means an end user of Your Application who acquires a license to such product solely for their own internal use and not for distribution, resale, user interface design, or software development purposes.
“Modification” means: a) any addition to or deletion from the contents of a file included in the original Source Software or previous Modifications created by You, and/or b) any new file that leverages any part of the original Source Software or previous Modifications.
“Sample Code” means sample source code included with the Software and designated as “sample code,” “samples,” “sample application code,” and/or “snippets,” and/or found in directories labeled “samples” or “examples”.
2. LICENSE GRANT
Subject to the payment of the fee required, and subject to your compliance with all of the terms and conditions of this License Agreement, We grant to You a revocable, non-exclusive, non-transferable and non-sublicensable license (i) for Designated User(s) to use the Software to create Modifications and Applications; (ii) for You to distribute the Source Software to End Users solely as integrated into the Applications; and (iii) for End Users to use Your Applications in accordance with the terms of this Agreement.
You may modify the “Sample Code” solely for the purposes of designing, developing and testing Your own Applications. However, You are permitted to use, copy and redistribute its modified Sample Code only if all of the following conditions are met: (a) You include Our copyright notice (if any) with Your Application, including every location in which any other copyright notice appears in such Application; and (b) You do not otherwise use Our name, logos or other of Our trademarks to market Your Application, unless otherwise agree by Us in writing.
We include VJET source code in the Software distribution under the Eclipse Public License, version 1.0. We have contributed to the VJET project in order for it to better understand Our software patterns, such that VJET based plugins can better provide code support projects leveraging Our software. The defined term “Software” shall include VJET for the purposes of Sections 5 and 6 hereof. Any provision of this License Agreement with respect to VJET that differs from the ECL is offered by Us alone and not by any other party. Source code for VJET is made available for download from Our website.
This is a license agreement and not an agreement for sale. We reserve ownership of all intellectual property rights inherent in or relating to the Software, which include, but are not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this License Agreement.
We provide You with source code to the Source Software so that You can create Modifications and Applications. While You retain all rights to any original work authored by You as part of the Modifications, We continue to own all copyright and other intellectual property rights in the Source Software.
You must not remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Software.
You will not owe Us any royalties for Your distribution of the Source Software in accordance with this License Agreement.
4. PROHIBITED USES
You may not redistribute the Source Software or Modifications other than by including the Source Software or a portion thereof within Your Application. You may not redistribute the Source Software or Modifications as part of any product that can be described as a development toolkit or library, an application builder, a website builder or any product that is intended for use by software, application, or website developers or designers. You may not redistribute any part of the Software documentation. You may not change or remove the copyright notice from any of the files included in the Software or Modifications.
UNDER NO CIRCUMSTANCES MAY YOU USE THE SOURCE SOFTWARE FOR A PRODUCT THAT IS INTENDED FOR SOFTWARE OR APPLICATION DEVELOPMENT PURPOSES.
You are required to ensure that the Source Software is not reused by or with any applications other than those with which You distribute it as permitted herein. For example, if You install the Source Software on a customer’s server, that customer is not permitted to use the Source Software independently of Your application, and must be informed as such.
You agree not to sublicense, assign or transfer the Object Software or Your rights in the Object Software, or authorize any portion of the Object Software to be copied onto or accessed from another individual’s or entity’s computer except as may be explicitly provided in this License Agreement. Notwithstanding anything to the contrary in this section, You may transfer copies of the Object Software installed on one of Your computers to another one of Your computers provided that the resulting installation and use of the Object Software is in accordance with the terms of this License Agreement and does not cause You to exceed Your right to use the Object Software under this License Agreement. Except as expressly authorized under this License Agreement, You are prohibited from: (a) renting, leasing, lending or granting other rights in the Object Software including rights on a membership or subscription basis; and (b) providing use of the Object Software in a computer service business, third party outsourcing facility or service, service bureau arrangement, network, or time sharing basis.
You agree not to modify, port, adapt or translate the Object Software. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Object Software. You agree not to use any part of the Object Software or Your knowledge of the Object Software (or any information that You learn as a result of Your use of the Object Software) to create a product with the same or substantially the same functionality as the Object Software. The Object Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to You on multiple media or in multiple copies. Nonetheless, the Object Software is designed and provided to You as a single product to be used as a single product on computers and platforms as permitted herein. You are not required to use all component parts of the Object Software, but You shall not unbundle any component parts of the Object Software for use on different computers. You shall not unbundle or repackage the Object Software for distribution, transfer or resale. You agree not to modify, port, adapt or translate the Object Software.
You are not allowed to redistribute Sencha Touch for use on any Embedded Device, apart from use within a general purpose web browser. The term “Embedded Device” shall mean hardware products that are designed and/or marketed to have a specific primary purpose, including without limitation any the following alone or in combination with each other: television, television receiver, game console, personal video recorder, player for digital versatile disc or other optical media, video camera, still camera, camcorder, GPS device, navigation device, in-car telematics device, in-car entertainment console, medical devices, video editing and format conversion device, video image projection device, or any similar type of consumer, professional or industrial device. The term “Embedded Device” shall also include general purpose hardware products that are permanently integrated into other products that have a specific primary purpose, such as automobiles, trucks, busses, recreational vehicles, refrigerators and other household appliances, beds and chairs. The term “Embedded Device” shall not include hardware products which are designed and marketed with the primary purpose of operating a wide variety of productivity, entertainment, and other software applications provided by unrelated third party software vendors, nor shall the term include devices designed and/or marketed primarily as a telephone or similar telephony based device, provided such device similarly supports a wide variety of productivity, entertainment, and other software applications provided by unrelated third party software vendors.
Open Source versions of certain of the Source Software (“GPL Version”) may be licensed under the terms of the GNU General Public License versions 3.0 (“GPL”) and not under this License Agreement. If You, or another third party, has, at any time, developed all (or any portions of) the Application(s) using the GPL Version, You may not combine such development work with the Source Software and must license such Application(s) (or any portions derived there from) under the terms of the GNU General Public License version 3, a copy of which is located at http://www.gnu.org/copyleft/gpl.html.
We shall indemnify You, or at Our option, defend You against any third party claim, suit or proceeding brought against You based on a claim that the Software infringes upon any U.S. patent, copyright, or trade secret of any third party, and will pay any costs, damages, fines, settlement and reasonable attorney’s fees (the “Liabilities”) attributable to any such claim, suit, or proceeding, provided that You give Us prompt written notice of, reasonable assistance with respect to, and sole control of the defense and settlement of, such claims; and provided further that You not enter into any settlement or compromise any such claim without Our prior written approval. Notwithstanding the foregoing, We shall have no liability to You or to any other party for Liabilities arising from or attributable to (i) any combination of the Software with any other software or equipment not provided by Us; (ii) any Modifications or any other modification of the Software, or any part thereof, by anyone other than Us; (iii) unauthorized use of the Software; (iv) use of the Software not contemplated by the Software documentation; or (v) claims or potential claims of which You have knowledge prior to the date hereof. You will take reasonable actions to prevent or mitigate any actual or potential Liabilities. Should the use of the Software or Modifications be enjoined, or in the event We wish to minimize Our potential liability hereunder, We may, at Our option, either: (i) substitute a functionally equivalent non-infringing unit of the Software; (ii) modify the infringing item so that it no longer infringes; (iii) obtain for You, at Our expense, the right to continue use of such item; or (iv) in lieu of the foregoing, We may take back such infringing item or items and refund to You the purchase price paid therefor, less amortized depreciation on a five (5) year straight line basis. The foregoing in this Section shall be Our sole liability and Your sole remedy for infringement or misappropriation of third party intellectual property or proprietary rights, which liability shall in no event exceed amounts paid hereunder. You shall indemnify Us, or at Our option, defend Us against any claim, suit or proceeding brought against Us arising out any of the exclusions set forth in the preceding paragraph or otherwise arising from your use or distribution of the Software or Sample Code. We will assist You in taking reasonable actions to prevent or mitigate actual or potential Liabilities, at Your expense.
This License Agreement and Your right to use the Software and Modifications will terminate immediately if You fail to comply with any of the terms and conditions of this License Agreement. Upon termination, You agree to immediately cease using and destroy the Software or Modifications, including all accompanying documents. The provisions of sections 4, 6, 7, 8, 9, 10, and 12 will survive any termination of this License Agreement.
7. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. WE DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.
8. LIMITATION OF LIABILITIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY 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 OR ANY OTHER SUBJECT MATTER RELATING TO THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OUR ENTIRE LIABILITY WITH RESPECT TO ANY SUBJECT MATER RELATING TO THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE.
We or a certified auditor acting on Our behalf, may, upon Our reasonable request and at Our expense, audit You with respect to the use of the Software. Such audit may be conducted by mail, electronic means or through an in-person visit to Your place of business. Any such in-person audit shall be conducted during regular business hours at Your facilities and shall not unreasonably interfere with Your business activities. We shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that You are using the Software in a way that is in material violation of the terms of the License Agreement, then You shall pay Our reasonable costs of conducting the audit. In the case of a material violation, You agree to pay Us any amounts owing that are attributable to the unauthorized use. In the alternative, We reserve the right, at Our sole option, to terminate the licenses for the Software, in addition to any other remedies available under law.
10. PAYMENT AND TAXES
If credit has been extended to You by Us, all payments under this License Agreement are due within thirty (30) days of the date We mail an invoice to You. If We have not extended credit to You, You shall be required to make payment concurrent with the delivery of the Software by Us. All amounts payable are gross amounts but exclusive of any value added tax, use tax, sales tax or similar tax (“Transaction Taxes”), all of which shall be your sole responsibility. You shall be entitled to withhold from payments any applicable withholding taxes and comply with all applicable tax legislation. Each party shall pay all taxes (including, but not limited to, taxes based upon its income) or levies imposed on it under applicable laws, regulations and tax treaties as a result of this License Agreement and any payments made hereunder (including those required to be withheld or deducted from payments); provided that You shall be responsible for all Transactions Taxes and shall pay or reimburse Us for the same upon invoice. Each party shall furnish evidence of such paid taxes as is sufficient to enable the other party to obtain any credits available to it, including original withholding tax certificates.
11. SUPPORT AND UPDATES
Subject to the payment of the applicable fee, and subject to the terms and conditions of this License Agreement, We shall provide to You the support services (“Support”) pursuant to the terms set forth on Exhibit A, attached hereto and made a part hereof. We reserve the right to modify Support terms at any time for any reason. Notice of any change will be made available via Our website. If the parties agree that such modifications materially degrade the ability of You to use the Support, You may terminate Support within thirty (30) days after such change and receive a refund of any unused fee for Support.
You are entitled to receive minor version updates to the Software (i.e. versions identified as follows (X.Y, X.Y+1). You may also be entitled to receive major (i.e. X.Y, X+1.Y) and maintenance updates to the Software (X.Y.Z, X.Y.Z+1), if such rights are provided under the terms of Support.
The license granted herein applies only to the version of the Software available when purchased in connection with the terms of this License Agreement. Any previous or subsequent license granted to You for use of the Software shall be governed by the terms and conditions of the agreement entered in connection with purchase of that version of the Software. You agree that you will comply with all applicable laws and regulations with respect to the Software, including without limitation all export and re-export control laws and regulations.
While redistributing the Software or Modifications thereof as part of Your Application, You may choose to offer acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License Agreement. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on our behalf. You shall indemnify Us, or at Our option, defend Us against any claim, suit or proceeding brought against Us (i) arising by reason of Your accepting any such support, warranty, indemnity or additional liability; or (ii) arising out of the use, reproduction or distribution of Your Application, except to the extent such claim is solely based on the inclusion of the Source Software therein. Further, You agree only to distribute the Source Software pursuant to an enforceable written agreement for Our benefit that includes all the limitations and restrictions of this License Agreement and is as protective of Us and Software as is this License Agreement. For clarity, You must purchase Designated User licenses for each contractor or consultant who uses the Source Software to create an Application on your behalf (including system integrators), whether or not such contractor or consultant has its own license to the Source Software.
You agree to be identified as a customer of ours and You agree that We may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in our marketing materials and web site.
You may not assign or transfer this License Agreement without Our prior written consent. This License Agreement may be assigned by Us in whole or part and will inure to the benefit of Our successors and assigns. Notwithstanding the foregoing, in any instance in which You transfer ownership of an Application on a work for hire basis, You may assign licenses for the total Designated Users that have used the Software to develop said Application under this License Agreement to another party (Assignee) provided (i) you provide written notice to Us prior to the effective date of such assignment; and (ii) there is a written agreement, wherein the Assignee accepts the terms of this License Agreement. Upon any such transfer, the Assignee may appoint new Designated Users, which mush be the same across all products included in the Software.
You acknowledge that this License Agreement is complete and is the exclusive representation of our agreement. No oral or written information given by Us or on our behalf shall create a warranty or collateral contract, or in any way increase the scope of this License Agreement in any way, and You may not rely on any such oral or written information. No term or condition contained in any purchase order shall have any force or effect.
There are no implied licenses or other implied rights granted under this License Agreement, and all rights, save for those expressly granted hereunder, shall remain with Us and our licensors. In addition, no licenses or immunities are granted to the combination of the Software and/or Modifications, as applicable, with any other software or hardware not delivered by Us to You under this License Agreement. Your rights under this License Agreement apply only to Software, Modifications, and/or Applications for which all Designated Users are duly licensed hereunder.
If any provision in this License Agreement shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this License Agreement shall continue in full force and effect. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this License Agreement shall remain in effect.
This License Agreement may be modified only by a written instrument signed by an authorized representative of each party.
This License Agreement is governed by the law of the State of California, United States (notwithstanding conflicts of laws provisions), and all parties irrevocably submit to the jurisdiction of the state or federal courts of the State of California and further agree to commence any litigation which may arise hereunder in the state or federal courts located in the judicial district of San Mateo County, California, US.
If the Software or any related documentation is licensed to the U.S. government or any agency thereof, it will be deemed to be “commercial computer software” or “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212. Any use of the Software or related documentation by the U.S. government will be governed solely by the terms of this License Agreement.
Commencing on the purchase or renewal of a support term (“Effective Date”), We will supply the services described below (the “Services”) to You with respect to the Supported Software described in Section 1 below, for which We have granted a license to Customer pursuant to a Sencha Commercial Software License Agreement (the “License Agreement”) by and between Us (“We,” “Us”, “Our”, or “Sencha”) and You (“Customer”, “You”) and for whom the applicable support fee has been paid.
1. Included Support Services
Supported Source Software shall mean the Source Software. Supported Object Software shall mean the Object Software. Supported Source Software and Supported Object Software are sometimes hereinafter collectively referred to as the “Supported Software”. All support plans listed below apply only to the Supported Software and do not apply to any other application, library or product developed or sold by Us. All support features listed below are available only for the Support Term and such support features will become unavailable immediately upon termination of this Support Agreement.
All support plans include the following basic features:
- Access to the most current documentation available for the Supported Software (the “Documentation”), including tutorials and examples.
- Read-only web access to current source code for the Supported Source Software.
- Unlimited, 24×7 access to the community-driven Sencha public support forums.
- Unlimited, 24×7 access to the Sencha member-only support forums that are monitored by the Sencha development and support teams. The number of people provided with member-only forum access is determined by each plan as listed below.
- Limited incident support as detailed in Section 2a.
- Support contacts provided with member-only support forum access up to the number of Designated Users for which support fees have been paid.
- A number of x-credits included that can be spent on any metered support services as detailed in Section 2. The number of x-credits included in Premium Support is 100 per licensed user.
- Maximum incident response time of 48 hours as detailed in Section 3a.
- Eligible to receive emergency hot-fix builds on an as-needed basis.
- Telephone support as detailed in section 2b.
- Emergency bug fix escalation available on an as-needed basis.
- Remote trouble-shooting services available as detailed in Section 2c.
2. Metered Support Services
All support features listed in this section are valued in x-credits and are only available up to the amount of x-credits available in the Customer’s support account at the time of the support incident. Additional x-credits may be purchased and spent on additional support at any time (provided such credits have not expired according to Section 3e). All references to “cost” in this section mean the cost in x-credits based on the x-credit value of the service. All references to “billing” in this section mean the deduction of accumulated x-credits from the support account of the Customer.
a. Support Requests
Support requests submitted to the Sencha Support Portal (support.sencha.com) are valued per single related incident. Each incident costs 10 x-credits. If telephone support is also required to resolve the incident, the cost for the telephone support is added separately and billed in addition to the incident support cost under the terms of Section 2b. Support requests determined to be unrelated to the original request shall constitute a new support incident at the sole discretion of Sencha support personnel.
b. Telephone Support
Telephone support is valued in 30-minute increments, with a 30-minute minimum x-credit cost per call (even if the call does not have an actual duration of 30 minutes). Each 30 minutes of telephone support costs 25 x-credits, and the number of separate phone calls is limited only by the total cost in x-credits available in the Customer’s support account balance. Telephone support must be scheduled in advance so that Sencha and the Customer can establish mutually agreeable availability, and Sencha agrees to complete the scheduling of telephone support within the response time listed in the appropriate plan in section 1.
c. Expert Services
Expert services include, but are not limited to, remote trouble-shooting on the Customer’s computer systems, performance tuning and code review of the Customer’s application code by Sencha support staff. Each 30 minutes of any expert service except on-site training costs 25 x-credits with a 30-minute minimum x-credit cost per request (even if the service does not have an actual duration of 30 minutes). All requests for expert services must be scheduled in advance so that Sencha and the Customer can establish mutually agreeable availability.
3. Terms of Support
a. Hours of Availability
Access to all web-based support features (online documentation and source code, online help forums) are generally available 24 hours per day, 7 days a week, 365 days a year barring unforeseen interruptions in Internet service or planned exceptions by Sencha. Notwithstanding anything to the contrary in this Support Agreement, Sencha does not guarantee such availability. All metered support services are also generally available 24 × 7 × 365, although the response to each request for metered support may not happen immediately, and will be governed by the response time terms outlined in section 3b. Any planned exceptions to the availability of support services will be communicated on the Sencha website as far in advance as possible.
b. Response Time
The response time listed in each support plan is the elapsed time between the receipt of a support request via the Sencha Support Portal (support.sencha.com) and the time when Sencha begins the support service, including a verbal or written confirmation to the Customer thereof. The actual time required to fully resolve the support request, if such full resolution occurs, may be longer than the maximum response time listed.
c. Our Responsibilities
We will use commercially reasonable efforts to assist Customer to resolve problems in its use of the Supported Software as described in Section 1. We make no guarantee that it can, or will, solve any problems with respect to the Supported Software presented by Customer, and further disclaim any warranties above and beyond any limited warranties that may have been expressly made by Us in the License Agreement. We will offer Services for the then-current version of the Supported Software. For not less than twelve (12) months from the release date of the then current version, We will also offer Services for the immediately preceding major version of the then-current version. A major version of the Supported Software is defined as the number in the version preceding the first decimal place, e.g., version 1.5 has a major version of 1 (and a minor version of .5). As an example, if 3.1 is the current major version, then any version of the Supported Software numbered 2.x would be supported until version 4.x becomes current, at which time support for all 2.x versions of the Supported Software would no longer be offered.
d. Customer’s Responsibilities
Customer is responsible for all hardware, operating systems, network setup, network maintenance and setup and use of any file access control systems required in the support of the Supported Software. Customer may be required to grant Us certain limited access rights to Customer’s proprietary computer systems in order that We may render support Services.
Customer is responsible for ensuring that its personnel have sufficient training to attain and maintain competence in the operation of the Supported Software. If We determine, in Our sole discretion, in responding to a Customer request for Support, that the solution is provided in available media (including, but not limited to, the source code documentation, tutorials and examples, websites or support forums), We may direct Customer’s personnel to the appropriate media for the solution to the problem. Even if the support request were resolved in so doing, any minimum support charges outlined in section 2 would still apply.
4. Subscription Services
During the Services Term, and provided Customer shall have continuously subscribed to the Services from the date of purchase of the Supported Software (also referred to as the “Subscribed Software”) or reinstated the Services pursuant to Section 7 hereof, We will provide Customer access to and extend Customer’s License Agreement to Major Releases, Minor Releases, Maintenance Releases, if any, as well as corresponding Documentation, for each Services subscribed Designated User that has licensed the Subscribed Software under the License Agreement.
“Major Release” means a generally available release of the Subscribed Software that contains functional enhancements or extensions, designated by Sencha by means of a change in the digit to the left of the first decimal point (e.g. Subscribed Software 3.0 >> Subscribed Software 4.0). “Minor Release” means a generally available release of the Subscribed Software that introduces a limited amount of new features and functionality, designated by Sencha by means of a change in the digit to the right of the decimal point (e.g. Subscribed Software 3.0>> Subscribed Software 3.1). “Maintenance Release” means a generally available release of the Subscribed Software that typically provides maintenance corrections or fixes only, designated by Sencha by means of a change in the digit to the right of the second decimal point (e.g. Subscribed Software 5.0 >> Subscribed Software 5.0.1).
5. Term and Termination
Our provision of the Services to Customer will commence on the Effective Date and will continue for an initial term of one (1) year (the “Initial Term”). If Customer has elected a Services plan with auto-renewals, Services will automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either party gives written notice of its intent not to renew at least thirty (30) days prior to the end of the current Services Term (as hereinafter defined). If Customer has elected a Services plan without auto-renewals, the Services will automatically terminate at the end of the Initial Term, unless Customer chooses to renew Services, subject to Sencha’s written agreement (each such renewal also referred to as a “Renewal Term”). The Initial Term as extended by any Renewal Term are collectively referred to as the Support Term.
A decision to terminate Services or otherwise not renew Services will not terminate the applicable Supported Software licenses. “Services Term” shall mean the Initial Term as extended by each Renewal Term.
X-credits must be used during the term in which they were purchased, and at the end of the Initial Term and each Renewal Term, any accumulated x-credits for that term that have not been spent will be lost. At the end of the Services Term the Services automatically terminate and any accumulated x-credits that have not been spent will be lost.
Sencha may update Services terms after the Initial Term with thirty (30) days advance notice to Customer of any changes deemed by Sencha to have potential adverse and/or material impacts to the Customer. Upon any renewal, Sencha’s then current terms and conditions for the Services will apply.
a. Services Fee Schedule
Unless otherwise agreed in writing, fees that are applicable for the Services (“Services Fees”) are payable on the Effective Date or, in the case of a renewal term, no later than the date of commencement of the applicable Renewal Term. Services Fees are non-refundable upon payment. Services Fees, including renewals, are at the then-current list price. Sencha may increase applicable Services Fees for renewals.
If Customer elects not to renew the Services Customer may later re-enroll or enroll, as the case may be, for the Services. If Customer purchases Services after acquiring the Supported Software licenses, or had elected not to renew Services and later wishes to re-enroll in the Services, Customer must move to the then current latest Major Release of the Supported Software, and must pay: (i) the applicable Services Fees for the current Services Period, and (ii) the amount of Services Fees that would have been paid for the period of time that Customer had not enrolled in the Services.
All Services Fees are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Sencha for all federal, state, dominion, provincial, or local sales, use, personal property, excise, value added, withholding or other taxes, fees, or duties relating to the transactions contemplated by this Support Agreement (other than taxes on the net income of Sencha).
c. Invoicing and Late Payments
All invoices issued hereunder by Sencha are due and payable within thirty (30) days of the date of the invoice. All amounts that are not paid on time by Customer shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. If payment of any Fee is overdue, Sencha may also suspend performance until such delinquency is corrected.
d. Non-Payment and Breach
Sencha may suspend performance of Services if Customer fails to meet its obligations as set forth under this Support Agreement. Sencha may terminate Services if such failure continues for thirty (30) days after Sencha’s written request to meet these obligations. Sencha may terminate the Agreement and all Services at any time if Customer is in breach of this Agreement.
7. Disclaimer; Limitation of Liability
We shall not be responsible to provide Services to the extent that the issue is caused by (a) Customer’s misuse, improper use, mis-configuration, alteration, or damage to the Supported Software; (b) Customer’s use of the Supported Software with any hardware or Supported Software not supplied or supported by Us; © Customer’s failure to install an update to the Supported Software if such update would have resolved the issue; or (d) otherwise uses in a manner not in accordance with the Support Agreement. We shall have no responsibility for loss of or damage to Customer’s data, regardless of the cause of any such loss or damage.