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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:
1.1. Subject to Licensee's payment of the
applicable fees and to Licensee's compliance with other terms and conditions of this
Agreement, Magento grants Licensee a non-transferable, non-assignable, non-sublicensable,
worldwide license to copy the Software for the purpose of installing and using it on
a computer and solely for internal purposes, in accordance with the Software's technical
documentation and solely during the periods and on the maximum number of Designated
Servers specified in one or more applicable Magento or Magento-authorized reseller
ordering schedules (the "Magento Order Form") executed with Licensee.
1.2. In the event that Licensee's actual
number of Servers of a particular Software license exceeds the licensed number of
Designated Servers on such license, Licensee shall promptly provide Magento with written
notice and pay Magento the fees required to license such additional Server(s) in
accordance with the commercial terms set out in the Magento Order Form.
1.3. Licensee shall implement reasonable
controls to ensure that it does not exceed the maximum number of licensed Servers of the
Software. 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 licensed number of Servers.
1.4. Magento shall provide to Licensee an
initial copy of the Software, 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 non-Server copies of the Software,
e.g., onto a local pc, as it requires for purpose of exercising its rights under this
1.5. Licensee is authorized to use the
Software on a single substitute or backup Server on a temporary basis without charge any
time a Designated Server is inoperative due to a malfunction beyond the control of
Licensee. Licensee may transfer the Software on a permanent basis to a single replacement
Server without charge. Licensee agrees to provide Magento with written notice, including
the Server type and operating system, of any such transfer to a backup or replacement
Server within five (5) days thereafter.
1.6. Licensee acknowledges that portions of
the Software are also freely available to the public under Magento's open source version
of the Software, known as Magento Community Edition, subject to certain conditions, with
limited warranties and other limited assurances, and without service or support. As an
express condition for the license granted hereunder, Licensee agrees that any use during
the term of this Agreement of such open source versions of the Software, whether in a
Production Server Instance or a Non-Production Server Instance, shall be deemed use of
the Software for purposes of the calculation of fees payable under the Agreement.
1.7. Magento also grants Licensee the right
to modify and create derivative works of the Software. Licensee may contribute the rights
in any of those derivative works back to Magento. Licensee may contact Magento for more
information regarding contributions of derivative works rights to Magento. Regardless of
whether Licensee contributes such derivative works rights to Magento, Licensee hereby
grants Magento a perpetual and irrevocable (irrespective of the expiration or termination
of this Agreement), nonexclusive, transferable, worldwide, and royalty-free license to
reproduce, create derivative works of, distribute, perform, and display any derivative
works of the Software developed by or for Licensee, and to use, make, have made, sell,
offer to sell, import, export, and otherwise exploit any product based on any such
2. LICENSE EXCLUSIONS
2.1 Except as expressly
authorized herein, Licensee shall not:
a. use or deploy the Software on any Server in excess of the
number of Designated Servers 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. export the Software in violation of U.S. Department of
Commerce export administration regulations.
2.2. No license, right or interest in any
Magento trademark, trade name or service mark is granted hereunder.
3. FEES AND PAYMENT TERMS
Licensee agrees to the fees and payment terms that are described in each Magento Order
Form executed by Licensee.
4. TITLE AND PROTECTION
4.1. Magento (or its third party providers)
retains title to all portions of the Software and other Proprietary Materials and any
copies thereof. The Proprietary Materials contain valuable proprietary information, and
Licensee shall not disclose them 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. The obligations set forth in this Section shall survive termination of this
4.2. 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 software
bundled within the Software, and 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.
4.3. 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 Product is "commercial computer software" or "commercial
computer software documentation" and that, absent a written agreement to the contrary,
the Government's rights with respect thereto are limited by the terms of this Agreement,
pursuant to applicable FAR and/or DFARS and successor regulations.
5. PATENT AND COPYRIGHT INDEMNITY
Subject to the limitations in Section 8, for such time as Licensee is entitled to
receive Support Services (as defined below), Magento shall indemnify and defend Licensee
against any claims made by a third party that Licensee's reproduction of the Software
(which, for the purposes of this Section 5, means the Software as delivered by Magento,
excluding the open source software programs described in Section 4.2) as permitted in
this Agreement directly infringes such third party's United States patent or copyright,
provided that Licensee complies with the requirements of this Section. Licensee will (a)
provide Magento prompt written notice of any claim that the Software infringes any
intellectual property rights, (b) provide Magento with all information and assistance
requested of it with respect to any such claim, and (c) offer Magento sole and complete
authority to defend and/or settle any and all such claims.
In the event that a court holds that the Software, or if Magento believes a court may
hold that the Software, infringes the intellectual property rights of any third party,
Magento may (but is not obligated to), in its sole discretion, do any of the following:
obtain for Licensee the right to continue using the Software, replace or modify the
Software so that it becomes non-infringing while providing substantially equivalent
performance or, accept return of the Software, terminate this Agreement, and refund
Licensee an amount equal to the license fees paid to Magento multiplied by the percentage
of the term of the license for the Software that Licensee did not enjoy due to the early
termination by Magento.
Magento shall have no liability or obligation under this Agreement to the extent the
alleged infringement is based on (i) a modification or derivative work of the Software
developed by anyone other than Magento; (ii), a combination of the Software with any
product or service not provided by Magento; (iii) use of the Software with one or more
Servers not listed in a Magento Order Form; (iv) use of the Software other than in
accordance with this Agreement or the documentation; (v) indirect or willful
infringement; or (vi) any open source code, as described in Section 4.2.
This Section 5 states Magento's entire liability and Licensee's exclusive remedy for any
infringement related to the Software.
6. DEFAULT AND TERMINATION
6.1. 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 pursuant to its agreement to the fees and payment terms in Section 3 of this
Agreement 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.
6.2. 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.
6.3. Within thirty (30) days after
termination of the Software license or this Agreement or expiration of the license term
as specified in the Magento Order Form, Licensee shall certify in writing to Magento
that Licensee has ceased use of any and all Proprietary Materials and that all copies
or embodiments thereof in any form, including partial copies within modified versions,
have been destroyed.
7.1. 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, as
delivered, will in all material respects perform the functions described in the
specifications contained in the documentation provided with the Software. In the event
that the Software does not, in all material respects, perform the functions therein
described, Magento or its authorized reseller will undertake to correct any reported
error in accordance with the Support Services Terms and Conditions set forth below in
Section 9, which shall be Magento's entire liability and Licensee's exclusive remedy for
breach of this warranty. 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 PROVIDED IN THIS SECTION ALL
SOFTWARE PROVIDED HEREUNDER IS PROVIDED "AS IS".
7.2. Disclaimer THE EXPRESS
WARRANTIES SET FORTH IN THIS SECTION 7 ARE THE ONLY WARRANTIES MADE BY MAGENTO WITH
RESPECT TO THE SOFTWARE PROVIDED BY MAGENTO. MAGENTO MAKES NO OTHER WARRANTIES, EXPRESS,
IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, MAKES NO WARRANTY OF
TITLE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. 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. LIMITATION OF LIABILITY
8.1. Liability Exclusions
UNDER NO CIRCUMSTANCES WILL MAGENTO BE LIABLE 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 CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL,
PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS
OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE OR
UNFORESEEABLE, BASED ON CLAIMS OF LICENSEE, MAGENTO OR ANY THIRD PARTY ARISING OUT OF ANY
BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY CONDITIONS OR OTHER TERM, BREACH OF
CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY
TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
8.2. Liability Cap
NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR
EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT (INCLUDING WITH RESPECT TO OBLIGATIONS
ARISING UNDER SECTION 5) WILL MAGENTO OR ITS SUPPLIERS BE LIABLE FOR DAMAGES, EXPENSES,
COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES, THAT EXCEED, IN THE AGGREGATE,
THE AMOUNT OF FEES PAID BY LICENSEE FOR THE SOFTWARE LICENSE IN THE FIRST TWELVE (12)
MONTH PERIOD AFTER THE EFFECTIVE DATE.
9. SUPPORT SERVICES TERMS AND CONDITIONS
For the periods specified in the Magento Order Form, Magento or its authorized
reseller will provide support services and Updates for the Software as described in
Magento's standard Support Services Terms and Conditions, which follow. Magento will
have no obligation to provide support for any modifications or derivative works of the
Software developed by anyone other than Magento.
10. CUSTOMER REFERENCES
Licensee hereby grants Magento the right to display Licensee's logos as part of
Magento's customer lists and other related marketing materials. 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), transmitted by facsimile (if confirmed by such mailing), or email, 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.
13. ENTIRE AGREEMENT
Along with Magento's standard Support Services Terms and Conditions, which follow,
and the Magento Order Form, 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 and
Magento hereby rejects same. 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
This Agreement is made in and shall be governed by the laws of the State of
California, without giving effect to any principles that provide for the application
of the law of another jurisdiction. All proceedings shall be conducted in English.
Venue for all proceedings shall be Santa Clara 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.
"Designated Server" shall mean the Server specified in a Magento Order Form
with respect to a particular Software license. Such Server may be that of a third-party
under nondisclosure obligations that will host the Software for the benefit of
"Modifications" means 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. The term
"Modifications" excludes Updates.
"Proprietary Material" means the Software, related documentation, and all
parts, copies and modifications thereof, and any other information, in whatever form,
received by Licensee hereunder, provided, however, such information shall not be deemed
Proprietary Material if it (a) is or becomes a part of the public domain through no act
or omission of Licensee; or (b) was in Licensee's lawful possession prior to the
disclosure and had not been obtained by Licensee from Magento; or (c) is lawfully
disclosed to Licensee by a third party without restriction on disclosure; or (d) is
independently developed by Licensee without reference to or use of Magento's
"Server" means each physical or virtual server from which a single instance of
the Software is accessed and used either for production purposes ("Production Server
Instance") or for non-production purposes, such as development, testing, training and
other non-operational business transactions ("Non-Production Server Instance").
For example, if one server contains two (2) instances of the Software, i.e.,
one Production Server Instance and one Non-Production Server Instance, then a
Server license is required for each of such instances; development in-house and
by third-party consultants requires licenses for two Non-Production Server
"Software" means Magento's proprietary
e-commerce software solution known as the Magento™ Enterprise Edition, provided
solely in source code, including associated technical documentation, and all
Updates thereof furnished to Licensee as part of Support Services. Except as
otherwise specified herein, the term Software includes certain open source
software programs described in Section 4.2. "Software" does not include any
"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.
Unless otherwise defined herein, all capitalized terms will
have the meanings set forth in the Agreement.
1. "SUPPORT SERVICES" CONSISTS OF:
a. Advice regarding the downloading,
installation and configuration of the Software (including Updates provided by Magento,
but excluding for the avoidance of doubt any Modifications to the Software), when used
by Licensee on systems that meet the Software's "System Requirements" specified on
Magento's website currently located at magento.com and its related sites as may be
updated by Magento from time to time (collectively, the "Site") (see specifically,
b. Facilities for bug tracking, escalation
of problems for priority attention, and access to community-supported FAQs and Forums
relating to the Software.
c. Assistance with troubleshooting to
diagnose and fix errors in the Software.
d. Access to Magento documentation relating
to the Software, including authorization to make copies of that documentation for
internal use as specified in the Agreement.
2. EXCLUSIONS FROM SUPPORT SERVICES Magento shall have no
obligation to support (i) versions of the Software other than the then-current and
immediately previous releases, which are operated on a supported hardware/operating
system platform specified in the release notes for the Software; (ii) altered or
modified Software; (iii) Software accessed on unlicensed Servers; (iv) problems caused
by Licensee's negligence, misuse, or hardware malfunction; or (v) use of the Software
inconsistent with Magento's instructions. Magento is not responsible for hardware changes
necessitated by changes to the Software. Support Services does not include:
a. Assistance in the development or
debugging of Licensee's system, including the operating system and support tools.
b. Information and assistance on technical
issues related to the installation, administration, and use of enabling technologies
such as databases, computer networks, and communications.
c. Assistance with the installation and
configuration of hardware including, but not limited to computers, hard disks, networks,
3. SUBCONTRACTORS Magento or its authorized resellers reserve
the right to subcontract any or all of the work to be performed under these Support
Terms, and Magento retains responsibility for any work so subcontracted.
4. LICENSEE RESPONSIBILITIES Licensee shall provide
commercially reasonable cooperation and full information to Magento or its authorized
resellers with respect to the furnishing of Support Services under this Agreement.
5. SUPPORT CONTACTS Licensee shall designate one or more
support contacts that are authorized to submit Software problems. If Licensee has
purchased the license from a Magento-authorized reseller, Licensee shall contact that
party for assistance. If Licensee has purchased the license directly from Magento,
Licensee may contact Magento on the Site or at its toll-free Support telephone
6. PROBLEM PRIORITY Upon receipt of a properly submitted
Software problem, as specified on the Site or its authorized reseller shall prioritize
it in accordance with the guidelines below:
a. Priority 1 (P1) - A P1 is a catastrophic
production problem within the Software that severely impacts the Licensee's Production
Server Instance, or because of which Licensee's Production Server Instance is down or
not functioning, or that results in a loss of production data and no work around exists.
P1 problems must be reported on Magento's toll-free support telephone number in order to
expedite resolution. Magento will use continuous efforts during its normal hours of
operation, with appropriate escalation to senior management, to provide a resolution
for any P1 problem as soon as is commercially reasonable.
b. Priority 2 (P2) - A P2 is a problem
within the Software where the Licensee's system is functioning but in a reduced capacity,
or the Problem is causing significant impact to portions of the Licensee's business
operations and productivity, or the Software is exposed to potential loss or interruption
of service. Problems existing in a non-production environment that would otherwise
qualify as a P1 if they were in a production system qualify as P2. Magento will use r
easonable efforts during its normal hours of operation to provide a resolution for any
P2 problem as soon as is commercially reasonable.
c. Priority 3 (P3) - A P3 is a medium-to-low
impact problem that involves partial and/or non-critical loss of functionality, or that
impairs some operations but allows Licensee's operations to continue to function.
Problems for which there is limited or no loss or functionality or impact to Licensee's
operation and for which there is an easy work-around qualify as P3. Magento will use
reasonable efforts during its normal hours of operation to provide a resolution for any
P3 problem in time for the next minor release of the Software.
d. Priority 4 (P4) - A P4 is for a general
usage question or issue that may be cosmetic in nature or documentation related, but the
Software works without interruption. Magento will use reasonable efforts during its
normal hours of operation to provide a resolution for any P4 problem in time for the
next major release of the Software.
e. Enhancement Request (ER) - An ER is a
recommendation for future product enhancement or modification to add official support
and documentation for unsupported or undocumented feature, or features that do not exist
in the Software. Magento will take ERs into consideration in the product management
process, but has no obligation to deliver enhancements based on any ER.
7. RESPONSE TIMES Magento or its authorized reseller shall
exercise commercially reasonable efforts to meet the response times specified below for
Gold Support (unless Licensee has upgraded to Platinum Support, as provided in the
Magento Order Form), following receipt of a Software problem properly submitted by
8. PROHIBITED USE As a condition of Licensee's use of the
Forums, Licensee will not use (and will prohibit its customers from using) the Forums (i)
to violate any applicable law, statute, ordinance or regulation; (ii) to disseminate
content that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar,
obscene, libelous, or otherwise objectionable; (iii) to disseminate any software
viruses or any other computer code, files or programs that may interrupt, destroy or
limit the functionality of any computer software or hardware or telecommunications
equipment; (iv) to infringe the intellectual property rights or proprietary rights, or
rights of publicity or privacy, of any third party; or (v) use the Forums for any
purpose other than their intended use.
9. TERM AND TERMINATION Magento will provide Support Services
and any Updates to Licensee during the periods identified in the Magento Order Form,
subject to Licensee's payment of the applicable fees. In the event Licensee fails to
pay such fees to Magento or in the event Licensee materially breaches the Support
Services provisions and does not cure such breach within thirty (30) days of its receipt
of Magento's notice of same, Magento may suspend or cancel Support Services.
10. GENERAL Magento shall not be liable for any failure or
delay in performance under these Support Terms due to causes beyond its reasonable
control. Any illegal or unenforceable provision shall be severed from these Support
Terms. Licensee agrees that any information received pursuant to these Support Terms
shall be deemed to be subject to the non-disclosure obligations set forth in the License
Agreement. Licensee's obligation of payment of moneys due under these Support Terms shall
survive termination of these Support Terms or the License Agreement. These Support Terms
state the entire agreement regarding provision of Support Services to Licensee and may be
amended only by a written amendment set forth on a separate document executed by
authorized representatives of both parties.
Last Updated: April 2014
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