Effective September 5, 2016
THIS DOCUMENT IS A LEGAL AGREEMENT (“Agreement”) BETWEEN SENCHA INC. (“Sencha”) AND YOU OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“Customer”) IN RELATION TO SENCHA MAINTENANCE AND SUPPORT SERVICES. BY UNDERTAKING TO RECEIVE AND/OR PAYING FOR THE SERVICES DESCRIBED BELOW (“Services”), YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, DO NOT PROCEED WITH RECEIVING THE SERVICES. THIS AGREEMENT DESCRIBES YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SERVICES.
Commencing on the purchase or renewal of a maintenance and support term (“Effective Date”), Sencha will supply the Services to Customer with respect to the Software described in Section 1 below, for which Sencha has granted a license to Customer pursuant to a software license agreement (the “License Agreement”) by and between Sencha and Customer and for whom the applicable maintenance and support fee has been paid.
1. Included Support ServicesThe Services listed below apply only to the Sencha product(s) for which they are purchased (“Software”) and do not apply to any other application, library or product developed or sold by Sencha or Sencha’s resellers. The support, if any, for any other such product will be governed by a separate agreement. All features listed below are available only for the Support Term (as hereinafter defined), and the Services will become unavailable immediately upon termination of this Agreement. Software generally offered by Sencha in un-obfuscated source code format is sometimes hereinafter referred to as Source Software.
The Services include the following basic features:
- Access to the current documentation for the Software (the “Documentation”), including tutorials and examples.
- Read-only access to the most current source code for Source Software.
- Unlimited, 24×7 access to the community-driven Sencha public support forums.
- Limited incident support as detailed in Section 2a.
- Support contacts provided with member-only support portal access up to the number of licensed 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 Support is 40 x-credits per supported user in addition to any additional x-credits purchased.
- Maximum incident response time of 48 hours as detailed in Section 3a.
- Eligible to receive emergency hot-fix builds as may be provided.
- Telephone support as detailed in section 2b.
- Emergency bug fix escalation available in some cases.
- 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 5). 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. Support requests submitted to the Sencha Support Portal must be in English. Foreign language support is addressed in Section 3c below.
b. Telephone Support
Telephone Support is available only if we determine that other means of support are insufficient to resolve the issue and such communication would be of assistance. 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. Sencha telephone support is in English. Foreign language support is addressed in Section 3c below.
c. Expert Services
Expert services may be engaged under support on an availability basis, depending on the skill set necessary to perform the service. Expert services may 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. Depending on the request, Sencha may advise of prerequisite actions for a particular expert service.
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 Agreement, Sencha does not guarantee such availability. All metered 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 Services will be communicated on the Sencha website as far in advance as possible. Hours of availability above are for English based support and foreign language support is addressed in Section 3c below.
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. Response times above are for English based support and foreign language support is addressed in Section 3c below.
c. Sencha’s Responsibilities
Sencha will use commercially reasonable efforts to assist Customer to resolve problems in its use of the Software as described in Section 1. Sencha makes no guarantee that it can, or will, solve any problems with respect to the Software presented by Customer, and further disclaims any warranties above and beyond any limited warranties that may have been expressly made by Sencha in the License Agreement.
Services are provided in English by Sencha. Provided, however, that Sencha’s distributors, partners and/or resellers (“Resellers”) may provide support in Resellers’ local language(s). In such case Resellers may offer Customers such Resellers’ own terms of support (including, but not limited to hours of availability, response times, method of access and delivery) in Resellers sole discretion, and such Reseller’s own terms of support will control Resellers’ local language support, and Section 3a and 3b shall not be applied to such Reseller’s local language support.
Sencha will offer Services for the then-current version of the Software (Version N). For not less than twenty-four (24) months from the release date of the then current version, Sencha will also offer Services for the major version immediately preceding the then-current version (Version N-1) of Sencha Ext JS and Sencha GXT.
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 Software. Customer may be required to provide Sencha with reproducible test case(s). In other cases, Customer may be required to grant Sencha certain limited access rights to Customer’s proprietary computer systems in order that Sencha may render Services. In some cases, Customer may be required to grant Resellers certain limited access rights to Customer’s proprietary computer systems in order that Resellers may provide Resellers’ local language support pursuant to Section 3c.
Customer is responsible for ensuring that its personnel have sufficient training to attain and maintain competence in the operation of the Software. If Sencha determines, in Sencha’s 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), Sencha 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.
All Services are offered only to Services subscribed individuals, who are not permitted to use the Services on behalf of other developers. Customer is not permitted to use generic or shared email accounts to access the Services.
4. Subscription Services
During the Support Term, and provided Customer shall have continuously subscribed to the Services from the date of purchase of the Software or reinstated the Services pursuant to Section 7 hereof, Sencha 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 developer that has licensed the Software under a License Agreement. Issues are often resolved by these updates. Sencha is under no obligation to address issues that are resolved in such updates.
“License Agreement” shall mean the commercial license agreement in effect between Sencha and Customer for the Software as generally published on Sencha’s website and as may be amended by Customer and Sencha.
“Major Release” means a generally available release of the 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. Software 3.0 >> Software 4.0). “Minor Release” means a generally available release of the 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. Software 3.0>>Software 3.1). “Maintenance Release” means a generally available release of the 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. Software 5.0 >> Software 5.0.1).
Sencha will also provide Customer access to and extend Customer’s License Agreement to the following software for purchases of the respective bundles: Sencha Ext JS Standard includes Sencha Ext JS, Ext JS Stencils, and Sencha Cmd. Sencha Ext JS Pro includes Sencha Ext JS Standard Software and Sencha Architect, Sencha JetBrains Plug-In, Sencha Eclipse Plug-In, Sencha Visual Studio Plug-In. Sencha Ext JS Premium includes Sencha Ext JS Pro Software and Sencha Pivot Grid, Sencha Inspector, Sencha Calendar Component, Sencha D3 Adapter, and Sencha Themer.
5. Term and Termination
Sencha’s 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 Support 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”). A decision to terminate Services or otherwise not renew Services will not terminate the applicable Software licenses. (“Support 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 Support Term the Services automatically terminate and any accumulated x-credits that have not been spent will be lost.
Sencha may update Services terms 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 Software licenses, or had elected not to renew Services and later wishes to re-enroll in the Services, Customer 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 Agreement (other than taxes on the net income of Sencha).
c. Invoicing and Late Payments
All invoices issued hereunder 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. Notwithstanding the foregoing, Services ordered through Resellers is subject to the fees and payment terms set forth on the applicable Resellers’ invoice.
d. Non-Payment and Breach
Sencha may suspend performance of Services if Customer fails to meet its obligations as set forth under this 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 (i) it is discovered that Customer is in breach of its Software license restrictions, pursuant to Customer’s License Agreement, or (ii) Customer is in breach of this Agreement or any other agreement with Sencha.
7. Service Limitations; Limitation of Liability
Neither Sencha nor Sencha’s resellers shall be responsible for providing Services to the extent that the issue is caused by (a) Customer’s misuse, improper use, mis-configuration, alteration, or damage to the Software; (b) Customer’s use of the Software with any hardware or software not supplied or supported by Sencha; (c) Customer’s failure to install an update to the Software if such update would have resolved the issue; or (d) uses in a manner not in accordance with the Agreement. Sencha shall have no responsibility for loss of or damage to Customer’s data, regardless of the cause of any such loss or damage. Services for Sencha Test refer to issues with the use or functioning of the Sencha Test product, and do not refer to matters relating to application development or the functionality of Customer applications.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SENCHA AND ITS 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. AND SERVICES. SENCHA AND RESELLERS DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE OR ANY OTHER CODE WILL BE UNINTERRUPTED OR ERROR-FREE, AND CUSTOMER ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SENCHA OR ITS 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 SERVICES OR ANY OTHER SUBJECT MATTER RELATING TO THIS AGREEMENT, EVEN IF SENCHA OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SENCHA’S AND RESELLERS’ ENTIRE LIABILITY WITH RESPECT TO ANY SUBJECT MATER RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE SERVICES.
Customer and Sencha are independent parties, and nothing in this Agreement shall be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf. Sencha’s resellers act as independent parties, and any agreements between Customer and a Sencha reseller or other obligations agreed to be resellers shall be the responsibility of that reseller and not Sencha.
All notices given under this Agreement shall be effective upon receipt and shall be in writing and, if to Customer, sent to the email or physical address provided by Customer to Sencha, and if to Sencha, by certified mail at Sencha’s headquarters as listed on Sencha’s website. You may not assign or transfer this Agreement without Our prior written consent. Any attempted assignment or delegation in violation of this Section shall be null and void. This Agreement may be assigned by Us in whole or part and will inure to the benefit of Our successors and assigns.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No oral or written information given by Us, Our resellers, or otherwise 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. Any waivers or amendments shall be effective only if made in writing. Further, any different or additional terms of any related purchase order, confirmation, or similar form shall have no force or effect.
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. No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered, or, in the case of an action for nonpayment, more than two years after the date the last payment was due.
This Agreement shall be governed by the substantive laws (notwithstanding conflicts of laws provisions) of The State of California, United States and all parties irrevocably submit to the jurisdiction of the 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.