1. LICENSE GRANT
Subject to the payment of the fee required, and subject to your compliance with all of the terms and conditions of this Agreement, We grant to You a revocable, non-exclusive, non-transferable and non-sublicensable license for You to install and use the Software on the licensed platforms.
The Software is licensed on a per-machine basis, and You may install and use the Software on only the number of machines for which You have purchased a license. The Software may be moved from one machine to another machine only after being uninstalled and deleted from the first machine. Each operating system image (virtual machine or physical machine) counts as a single machine.
In addition to the other terms contained herein, We grant to You a revocable, non-exclusive, non-transferable and non-sublicensable license to install and use the Software on a single machine (the “Trial License”) strictly for Your internal evaluation and review purposes and not for production purposes. This Trial License applies only if You have registered with Us for a Trial License of the Software and shall be effective for thirty (30) consecutive days following the date of registration (“the Trial Period”). You may only register for a Trial License once in any eighteen month period. You agree not to use a Trial License for any purpose other than determining whether to purchase a license to the Software. You are explicitly not permitted to distribute the Software to any user outside the Organization on whose behalf you have undertaken this license. Your rights to use the Trial License will immediately terminate upon the earlier of (i) the expiration of the Trial Period, or (ii) such time that You purchase a license to the Software. We reserve the right to terminate Your Trial License at any time in Our absolute and sole discretion.
In addition to the other terms contained herein, in the event You have downloaded or received beta or pre-release versions of the Software (the “Beta Software”) from Us, We grant to You a revocable, non-exclusive, non-transferable and non-sublicensable license to install and use the Beta Software strictly for Your internal evaluation and review purposes and not for production purposes (the “Beta License”). You are explicitly not permitted to distribute the Software to any user outside the Organization on whose behalf you have undertaken this license. Your rights to use the Beta Software will immediately terminate upon the earlier of (i) the expiration of the evaluation period established by Us, or (ii) such time that You purchase a license to a non-evaluation version of the Software. We reserve the right to terminate Your Beta License at any time in Our absolute and sole discretion.
YOU ACKNOWLEDGE THAT TRIAL AND/OR BETA SOFTWARE MIGHT PLACE WATERMARKS ON OUTPUT, CONTAIN LIMITED FUNCTIONALITY, FUNCTION FOR A LIMITED PERIOD OF TIME, OR LIMIT THE FUNCTIONALITY OR TIME OF FUNCTIONING OF ANY OUTPUT. ACCESS TO AND/OR USE OF ANY FILES OR OUTPUT CREATED WITH SUCH SOFTWARE IS ENTIRELY AT YOUR OWN RISK. WE ARE LICENSING THE SOFTWARE ON AN “AS IS” BASIS AT YOUR OWN RISK AND WE DISCLAIM ANY WARRANTY OR LIABILITY TO YOU OF ANY KIND.
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 Agreement.
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.
3. PROHIBITED USES
You agree not to sublicense, assign or transfer the Software or Your rights in the Software. Notwithstanding anything to the contrary in this section, You may transfer copies of the Software installed on one of Your computers to another one of Your computers provided that the resulting installation and use of the Software is in accordance with the terms of this Agreement and does not cause You to exceed Your right to use the Software under this Agreement. Except as expressly authorized under this Agreement, You are 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.
You agree not to modify, port, adapt or translate the Software. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You agree not to use any part of the Software or Your knowledge of the Software (or any information that You learn as a result of Your use of the Software) to create a product with the same or substantially the same functionality as the Software. The 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 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 Software, but You shall not unbundle any component parts of the Software for use on different computers. You shall not unbundle or repackage the Software for distribution, transfer or resale.
This Agreement will terminate immediately if You fail to comply with any of the terms and conditions of this Agreement. Upon termination, You agree to immediately cease using and destroy the Software, including all accompanying documents. The provisions of sections 2, 3, 4, 5, 6, 7, 8, and 10 will survive any termination of this Agreement.
5. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR RESELLERS 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 OR THE CODE IT PRODUCES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.
6. LIMITATION OF LIABILITIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR RESELLERS 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 THE CODE IT PRODUCES OR ANY OTHER SUBJECT MATTER RELATING TO THIS AGREEMENT, EVEN IF WE OR OUR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OUR ENTIRE LIABILITY WITH RESPECT TO ANY SUBJECT MATER RELATING TO THIS 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 this 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 discretion, to terminate the licenses for the Software, in addition to any other remedies available under law. This Section shall survive expiration or termination of this Agreement for a period of two (2) years.
8. PAYMENT AND TAXES
If credit has been extended to You by Us, all payments under this 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. Any value added tax, use tax, sales tax or similar tax (“Transaction Taxes”) shall be your sole responsibility. 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 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. Notwithstanding the foregoing, Software ordered through Our resellers is subject to the fees and payment terms set forth on the applicable reseller invoice.
9. SUPPORT AND UPDATES
You are not entitled to any support for the Software under this Agreement. All support must be purchased separately and will be subject to the terms and conditions contained in the Sencha support agreement. You are entitled to receive minor version updates to the Software (i.e. versions identified as follows (X.Y, X.Y+1). You are not entitled to receive major version updates (i.e. X.Y, X+1.Y) or bug fix updates to the Software (X.Y.Z, X.Y.Z+1), unless purchased independently of this license.
The license granted herein applies only to the version of the Software available when purchased in connection with the terms of this Agreement, and to any updates and/or upgrades to which you may be entitled. 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.
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 Agreement without Our prior written consent. This Agreement may be assigned by Us in whole or part and will inure to the benefit of Our successors and assigns.
You acknowledge that this 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 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 Agreement, and all rights, save for those expressly granted hereunder, shall remain with Us.
If any provision in this Agreement shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this 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 Agreement shall remain in effect.
This Agreement may be modified only by a written instrument signed by an authorized representative of each party. The failure of either party to enforce any provision of this Agreement may not be deemed a waiver of that or any other provision of this Agreement.
This 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 considered to be “commercial computer software” or “commercial computer software documentation,” as those terms are used in 48 CFR § 12.212 or 48 CFR § 227.7202, and is being licensed with only those rights as are granted to all other licensees as set forth in this Agreement.