Magento Mobile End User License Agreement
This End User License Agreement ("Agreement") is entered into by and between Magento, Inc. ("Magento") and the Licensee executing the Magento Order Form (defined below). The parties agree as follows:
TERMS AND CONDITIONS
1.1. Subject to Licensee’s payment of the applicable fees and to Licensee’s compliance with the other terms and conditions of this Agreement, Magento grants Licensee a non-transferable, non-assignable, non-sublicensable, worldwide license to use, modify and create derivative works in respect of Magento's proprietary e-commerce software solution known as Magento TMMobile (the "Software"), solely for internal purposes, in accordance with the Software's technical documentation and solely in connection with a current license to a compatible version of the Magento Community, Enterprise or Professional Edition, to develop and operate a mobile application under Licensee's trademarks and/or brands ("App") during the periods specified in one or more applicable Magento ordering schedules (the "Magento Order Form") executed with Licensee.
1.2. In the event that Licensee's use of the Software exceeds the number of authorized Apps as indicated on the Magento Order Form, Licensee shall promptly provide Magento with written notice and pay Magento the fees required to license the Software for such an additional App ("Additional App") in accordance with the commercial terms set out in the Magento Order Form. An App that is in Magento's sole discretion functionally-equivalent but is localized and is being distributed in a distinct region with, for example, modified images or in a different language, shall not be considered an Additional App.
1.3. Licensee shall implement reasonable controls to ensure that it does not exceed the maximum number of authorized Apps. Magento reserves the right to audit Licensee's use of the Software during normal business hours and with reasonable notice and to include means within the Software to limit Licensee's use of the Software to the authorized number of Apps.
1.4. Magento shall provide to Licensee an initial copy of the Software, in source code, including the associated technical documentation, for use by Licensee in accordance with this Agreement. Subject to Sections 1.1-1.3 above, Licensee is authorized to make a reasonable number of copies of the Software as it requires for purpose of exercising its rights under this Agreement. Except as otherwise specified in this Agreement, the term Software includes (i) associated technical documentation, (ii) Updates (defined below), and (iii) certain open source software programs described in Section 5.2, but does not include any code developed by Licensee or any third party, including without limitation, configuration, integrations, implementations, or localizations to the external layer of the core, baseline Software product.
2. License Exclusions
2.1. Except as expressly authorized herein, Licensee shall not:
- a. use or deploy the Software (i) unless in connection with a current license to a compatible version of the Magento Community, Enterprise or Professional Edition; and (ii) in excess of the number of authorized Apps as specified in the applicable Magento Order Form;
- b. distribute, sublicense, disclose, market, rent, lease, or offer remote computing services, networking, batch processing or transfer of, the Software to any third party, or permit any person or entity to have access to the Software by means of a time sharing, remote computing services, networking, batch processing, service bureau or time sharing arrangement;
- c. use the Software for patent-mining purposes, such as determining if any features, functions or processes provided by the Software are covered by any patents or patent applications or using the Software as a reference, or using specific knowledge of the Software, to modify existing patents or patent applications, or creating any continuation, continuation in part, or extension of existing patents or patent applications
- d. export the Software in violation of U.S. Department of Commerce export administration regulations;
- e. remove, alter, or deface any of the trademarks, trade names, logos, patent or copyright notices or markings, or other legends, or add any other notices, markings, or legends to the Software.
2.2. No license, right or interest in any Magento trademark, trade name or service mark is granted hereunder.
3. Licensee Requirements
3.1. Licensee acknowledges and agrees that: (i) it is familiar, and will at all times comply, and cause users to comply, with any applicable terms and conditions of the Apple App Store or any other similar distribution channel ("Distributor") that govern the distribution of the App by Distributor ("Distributor Terms"); (ii) that Distributor may, at any time, (a) modify its Distributor Terms, (b) require modifications to the App, or (c) limit or cease distribution of the App; and (iii) the continued availability of the App is dependent on payment of the Software fees set forth in Section 4 below and Licensee's continued compliance with this Agreement.
3.2. Licensee (and not Magento) assumes sole responsibility for the App (including the submission of the App to Distributor and the daily operation of the App) and any Content (defined below) thereof, including, but not limited to: (i) product warranties, claims, maintenance and support services; (ii) other third-party claims including, but not limited to, those related to infringement of a party's intellectual property rights; (iii) compliance with Distributor Terms and any applicable law or regulation including but not limited to those relating to privacy and data collection; and (iv) ensuring that users are neither restricted parties according to any U.S. government list nor located in a country that is subject to a U.S. Government embargo or "terrorist supporting" designation. "Content" means any information that Licensee, or its users, may generate, provide, store, post, transmit or upload in connection with the Software or the App, such as data files, written text, software, music, graphics, stylized logos, photographs, images, sounds, videos, messages and similar materials.
4. Fees and Payment Terms
Fees and payment terms are set forth in each Magento Order Form executed with Licensee.
5. Title and Protection
5.1. Magento (or its third party providers) retains title to all portions of the Software and any copies thereof. The Software contains valuable proprietary information, and Licensee shall not disclose the Software to anyone other than those of its employees or consultants under written nondisclosure obligations at least as restrictive as those contained in this Agreement, having a need to know for purposes consistent with this Agreement. Licensee shall be responsible for the compliance of such employees or consultants. Licensee shall affix, to each full or partial copy of the Software made by Licensee, all copyright and proprietary information notices as were affixed to the original.
5.2. Licensee acknowledges that the Software includes certain open source software which is governed by the applicable license terms thereof. A list of such open source software, as amended from time to time, including the links applicable to such open source software is specified in the product release notes for each Software version. The use of the open source software bundled within the Software is subject to the provisions of such license agreements, and in the event of any contradiction between the provisions of this Agreement and the provisions of such applicable license agreement, the provisions of the applicable open source license agreement shall prevail solely with respect to such open source software products, Magento makes no indemnity with respect to any open source code included within the Software, and for greater clarity, the indemnity set out in Section 6 (Indemnity) below does not apply to any such open source code.
5.3. If the Software is acquired by or on behalf of a unit or agency of the U.S. Government (the "Government"), the Government agrees that such Software is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the Government’s rights with respect to such Software are limited by the terms of this Agreement, pursuant to applicable FAR and/or DFARS and successor regulations.
6.1. Magento shall indemnify and defend Licensee against any claims that the Software infringes any United States or European patent or copyright; provided that Magento is given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim. In the defense or settlement of the claim, Magento shall obtain for Licensee the right to continue using the Software, replace or modify the Software so that it becomes non-infringing while giving equivalent performance or, if Magento determines that such remedies are not reasonably available, remove the infringing portion of the Software, accept its return and refund the prorated portion of any prepaid but unused fees for the use or support of such Software license. Magento shall have no liability if the alleged infringement is based on (i) a modification of the Software by anyone other than, or a combination of the Software with any product or service not provided by, Magento; (ii) use of the Software other than in connection with a current license to a compatible, current or immediately previous major release, version of the Magento Community, Enterprise or Professional Edition; or (iii) use of the Software other than in accordance with the Software's technical documentation. This Section 6 states Magento's entire liability and Licensee's exclusive remedy for infringement.
6.2. Licensee agrees to defend, indemnify and hold harmless Magento and its affiliates and their respective officers, directors, agents, consultants and employees from any claims, damages, liabilities, costs, and expenses (as incurred, including attorney’s fees) arising from (i) Licensee's use of the Software or the App; (ii) any third party claims in connection with the Content; (iii) the use by any third party of the App; and (iv) Licensee's failure to comply with the terms and conditions of this Agreement or any Distributor Terms.
7. Default and Termination
7.1. An event of default shall be deemed to occur if: (i) Licensee fails to perform any of its obligations under the Sections entitled "License Exclusions" or "Title and Protection"; (ii) Licensee fails to pay amounts due within seven (7) days of the relevant due date; or (iii) either party fails to perform any other material obligation under this Agreement and such failure remains uncured for more than thirty (30) days after receipt of written notice thereof.
7.2. If an event of default occurs, the non-defaulting party, in addition to any other rights available to it under the law, may terminate this Agreement and all licenses granted hereunder by written notice to the defaulting party. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
7.3. Within thirty (30) days after termination of the Software license or expiration of the license term specified in the Magento Order Form, Licensee shall certify in writing to Magento that Licensee has ceased use of the Software and that all copies of the Software in any form, including partial copies within modified versions, have been destroyed.
7.4. The provisions of Sections 2, 4, 5, 6.2, 7.3, 9, 12 and 15, as well as this Section 7.4 and any other sections which by their nature would be reasonably expected to survive, shall survive and be enforceable after any termination of this Agreement.
8.1. Warranty for Software. Magento warrants for a single period of ninety (90) days commencing upon Magento’s electronic delivery of the Software to Licensee that the Software will in all material respects perform the functions described in the specifications contained in the documentation provided with the Software. During such warranty period, Magento will use commercially reasonable efforts to correct any reported error in the Software, which shall be Magento's entire liability and Licensee's exclusive remedy for errors. Licensee assumes all responsibility for the selection of the Software to achieve its intended results. Magento does not warrant that the Software will meet Licensee’s requirements, that the Software will operate in the combinations which Licensee may select for use, that the operation of the Software will be uninterrupted or error-free, or that all error conditions will be corrected. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, ALL SOFTWARE PROVIDED HEREUNDER IS PROVIDED “AS IS”, AND MAGENTO MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NONINFRINGEMENT. MAGENTO'S EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, MAGENTO RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE SOFTWARE.
8.2. No Warranty for App or Content. Magento makes no representation or warranty, and disclaims all liability, related to the App and Content or their distribution, operation or availability.
9. Limitation of Liability
LIABILITY EXCLUSIONS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL MAGENTO OR ITS AFFILIATES, SUBSIDIARIES, OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE, LOSS OF USE, OR INABILITY TO USE THE SOFTWARE OR THE APP, EVEN IF MAGENTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF MAGENTO, ITS AFFILIATES, SUBSIDIARIES, AND ITS THIRD PARTY LICENSORS, IF ANY, FOR DAMAGES UNDER THIS AGREEMENT OR ARISING FROM USE OF THE SOFTWARE OR THE APP EXCEED THE AMOUNT PAID BY LICENSEE TO MAGENTO FOR THE SOFTWARE IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
Magento will provide Updates for the Software. "Updates" means all published revisions and corrections to the printed documentation and corrections and new releases of the Software which are generally made available to Magento's supported customers at no additional cost or for media and handling charges only. Updates shall not include any options or future products which Magento sells separately.
11. Publicity and Branding
The parties shall cooperate to undertake mutually agreed joint marketing activities.
All notices shall be in writing and sent by first class mail or overnight mail (or courier), or transmitted by facsimile (if confirmed by such mailing), to the addresses indicated on the Magento Order Form, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to Magento shall be sent to the Contracts Administration Department.
Licensee may not assign this Agreement without the prior written consent of Magento; provided that such consent shall not be required for assignment to a purchaser of all or substantially all of the assets or equity securities of Licensee who undertakes in writing to be bound by all the terms and conditions of this Agreement. Any prohibited assignment shall be null and void.
14. Entire Agreement
Along with the Magento Order Form, and except for any existing Magento software or services agreements, this Agreement is the complete and exclusive agreement between the parties, which supersedes all proposals or prior agreements, oral or written, including any online (click-through) agreement which Licensee may have accepted in conjunction with the downloading of the Software, and all other communications between the parties relating to the subject matter hereof. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text hereof or Magento Order Form shall add to or vary the terms thereof. Except as contained in a writing signed by both parties, all such proposed variations or additions are objected to and shall have no force or effect.
This Agreement is made in and shall be governed by the laws of the State of California, excluding choice of law principles. All proceedings shall be conducted in English. Venue for all proceedings shall be Los Angeles County, California, provided that Magento may seek injunctive relief in any court of competent jurisdiction. The United Nations Convention for the International Sale of Goods shall not apply. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. Except for Licensee's obligation to pay Magento, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. The parties agree to receive electronic documents and accept electronic signatures (information attached or logically associated with such document and clicked or otherwise adopted with an intent to sign) including in counterparts which shall be valid substitutes for paper-based documents and signatures, and the legal validity of a transaction will not be denied on the ground that it is not in writing.