APPLICATION CRAFT ENTERPRISE LICENSE AND SUPPORT AGREEMENT
NOTICE: IN ORDER TO DOWNLOAD AND USE THE SOFTWARE, YOU MUST AGREE TO THIS APPLICATION CRAFT ENTERPRISE LICENSE AND SUPPORT AGREEMENT (THIS “AGREEMENT”). READ THIS AGREEMENT CAREFULLY AND CLICK THE “AGREE” BUTTON BEFORE DOWNLOADING OR USING THE SOFTWARE. BY CLICKING THE “AGREE” BUTTON OR, IF YOU HAVE ALREADY CLICKED THE “AGREE” BUTTON, BY CONTINUING TO ACCESS OR USE THE SOFTWARE, YOU AGREE TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT CLICK THE “AGREE” BUTTON AND YOU MUST NOT, AND MAY NOT, DOWNLOAD OR USE THE SOFTWARE. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN APPLICATION CRAFT AND YOU STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
This Agreement was last updated on November 5, 2012. It is effective between You and Application Craft as of the date of Your accepting this Agreement (the “Effective Date”).
1. DEFINITIONS. The following terms will have the following meanings: “Affiliate” means any entity that directly or indirectly owns or controls, is owned or controlled by, or is under the common ownership or control with a party, where ownership or control is denoted by having more than fifty percent (50%) of the voting power (or equivalent ownership interest) of the applicable entity. “Application Craft” means Application Craft UK Ltd., registered in Stratford-upon-Avon, England. “Online Registration Form” means the Online Registration Form agreed to and submitted by You when requesting the Software that, when approved by Application Craft, is automatically incorporated into this Agreement by reference. “Server” means the server on which Application Craft Enterprise is installed as specified in the Online Registration Form or in writing. “Seats” means the number of developer accounts for the Software that You are authorized to create as specified in the Online Registration Form or in writing. “Software” means the object code form of Application Craft's proprietary Application Craft Enterprise software application, and any Updates and Upgrades that are provided to You by Application Craft, and any related documentation made available to You by Application Craft (“Documentation”). “Updates” means a Software release containing error corrections, in object code form, which is made commercially available by Application Craft and generally indicated by a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.x.y) and any corresponding changes to Documentation. “Upgrades” means a Software release containing new enhancements, features, or functionality, in object code form, which is made commercially available by Application Craft and generally indicated by a change in the digit to the right of the first decimal point or a change in the digit to the left of the first decimal point (e.g., a change from version x.x.x to x.y.x or a change from version x.x.x to y.x.x) and any corresponding changes to Documentation. “You” or“Your” means the company or other legal entity for which You are accepting this Agreement as set forth on the Online Registration Form, and any Affiliates of that company or entity.
2. LICENSE. Subject to the terms of this Agreement and Your payment of all applicable Subscription Fees (defined below), during the Subscription Term (defined below), Application Craft hereby grants to You a revocable, non-exclusive, non-transferable, non-assignable (except as provided in Section 14.1) right and license (a) to download and install the Software on Your servers for the number of Seats specified in the Online Registration Form; (b) to use the Software solely for Your internal operation and use; and (c) to use the Documentation solely for Your internal operation and use.
3.1 GENERAL. The license granted to You under this Agreement is granted solely to You and any of Your Affiliates. You may not assign, sell, rent, lease, sublicense, lend, transfer, resell, or distribute the Software to any third party or use the Software on behalf of any third party unless otherwise agreed to in writing by Application Craft in its sole discretion. You agree not to copy the Software, in whole or in part, except that You may make copies of the Software and Documentation for backup and archival purposes only. You agree not to modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation and You agree to include all such notices on all copies. You may not modify the Software, make derivative works based on the Software, or merge the Software into any other computer programs. You may not reverse engineer, disassemble, or decompile the Software, in whole or in part, or otherwise attempt to derive its source code. You agree to use the Software in compliance with all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions.
3.2 SERVER The license granted to You under this Agreement is limited to a single server unless otherwise specified in the Online Registration Form or a Sales Agreement from an authorized signatory of Application Craft. It is expressly forbidden to install Application Craft Enterprise on any additional servers, whether for testing, staging, cold standby, hot standby or any other purpose unless agreed to in either the Online Registration Form or in writing. Upon Application Craft's request (such request not to be made more than once during any 12 month period without good cause), You agree to promptly deliver to Application Craft (a) any usage files and reports generated by the Software to permit Application Craft to verify the number of Servers actually used by You during the applicable Subscription Term; and/or (b) a certification signed by one of Your officers regarding the number of Servers actually used by You during the applicable Subscription Term. Notwithstanding the foregoing, You agree to reasonably cooperate with Application Craft to verify the number of Servers actually used by You during the applicable Subscription Term. If Application Craft confirms that You have exceeded the number of Servers for the applicable Subscription Term, in addition to any other remedies available under this Agreement or applicable law, You agree to pay to Application Craft the then-current Subscription Fees for the additional Servers used by You. You also acknowledge that the Application Craft Enterprise Servers may send information across the Internet to its central administrative servers for the purpose of identifying a running Application Craft Enterprise Server, in which case Application Craft undertakes that the only information that will be transmitted to its central administrative servers will be information such that such monitoring can be reasonably performed.
3.3 SEATS. The license granted to You under this Agreement is limited to the number of Seats set forth in the Online Registration Form. Only one user account may be associated with a particular Seat. Only one person may use a user account; two or more people may not share a user account. If a user account is deleted, You may create a new user account associated with the corresponding Seat. If You desire to use the Software in excess of the Seats specified in the Online Registration Form, You may request such increase by submitting a request by email to firstname.lastname@example.org. If and when additional Seats are added to Your subscription: (a) You will pay to Application Craft the Subscription Fees for such additional Seats at the then-current price, which amount will be prorated for the balance of the then-current Subscription Term; and (b) the Subscription Fees for all Seats will adjust to the then-current price for any renewal Subscription Term. Upon Application Craft's request (such request not to be made more than once during any 12 month period without good cause), You agree to promptly deliver to Application Craft (a) any usage files and reports generated by the Software to permit Application Craft to verify the number of Seats actually used by You during the applicable Subscription Term; and/or (b) a certification signed by one of Your officers regarding the number of Seats actually used by You during the applicable Subscription Term. Notwithstanding the foregoing, You agree to reasonably cooperate with Application Craft to verify the number of Seats actually used by You during the applicable Subscription Term. If Application Craft confirms that You have exceeded the number of Seats for the applicable Subscription Term, in addition to any other remedies available under this Agreement or applicable law, You agree to pay to Application Craft the then-current Subscription Fees for the additional Seats used by You.
4. TITLE. Application Craft and its licensors own all rights, title, and interest in and to the Software. Your rights to the Software are limited to the license expressly granted to You in this Agreement. Application Craft reserves all rights not expressly granted in this Agreement.
5. TERM AND TERMINATION.
5.1 TERM. This Agreement is effective as of the Effective Date and will continue in force for a period of one year from the Effective Date or until terminated as provided herein (“Subscription Term”). Upon expiration of the then-current Subscription Term, Application Craft will deliver to You a notice or invoice (depending on the original method of payment) by e-mail for Subscription Fees for an additional one year renewal Subscription Term. You may cancel Your subscription by either providing written notice of non-renewal to Application Craft at any time during the Subscription Term or within 30 days after the notice/invoice date or by not paying the invoice within 30 days of the invoice date, and this Agreement will automatically terminate at the end of the then-current Subscription Term. The amount of Subscription Fees during any renewal Subscription Term will be the same as that during the prior Subscription Term for as long as You use the same number of licensed Seats. If, at any time, You increase or decrease the number of licensed Seats as set forth in Section 3.2 above, the Subscription Fees for all licensed Seats will adjust to the then-current Subscription Fees. In addition, Application Craft reserves the right to change its prices by giving You written notice of such change and You will have 30 days to cancel Your subscription before such change becomes effective for the renewal Subscription Term.
5.2 TERMINATION BY APPLICATION CRAFT. Application Craft may immediately terminate this Agreement if You breach any material term of this Agreement and, if such breach is capable of cure, You fail to cure such breach within 20 days of written notice thereof.
5.3 TERMINATION BY YOU. You may immediately terminate this Agreement at any time and for any reason by providing written notice to Application Craft.
5.4 EFFECT OF TERMINATION. Upon termination or expiration of this Agreement (a) the Subscription Term shall end; (b) all licenses and rights to use the Software granted to You hereunder shall immediately terminate; and (c) Application Craft may disable the Software, although You will continue to have access to Your data. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 4, 5.4, 7, 9.2 10, 11, 12, 13, and 14.
6.1 GENERAL. Subject to Your compliance with Your payment obligations under this Agreement, Application Craft will provide You with technical support (“Support”) during its regular business hours: 09:00 am to 6:00 pm English Time, Monday through Friday, excluding observed holidays. Support will be provided via our developer portal, which employs a Web-based ticketing system. Support includes: (a) assistance related to questions on the installation and operational use of the Software; (b) assistance in identifying and verifying the causes of suspected errors in the Software; and (c) providing workarounds for identified Software errors or malfunctions, where reasonably available to Application Craft. You will use commercially reasonable efforts to ensure that only persons properly trained in the operation and usage of the Software will use the Support. Support does not cover advice, training or consultancy of any form.
6.2 UPDATES; UPGRADES. Throughout the Subscription Term, Application Craft will make any Updates and Upgrades available for download.
6.3 ERROR CORRECTIONS. Throughout the Subscription Term, Application Craft will use its reasonable efforts to correct any reproducible error in the Software with a level of effort and within timeframes commensurate with the severity of the error and consistent with industry standards for similar support services. Application Craft will have no obligation to correct all errors in the Software. Upon identification of any error, You will notify Application Craft of such error and provide Application Craft with enough information for Application Craft to reproduce the error.
6.4 LIMITATIONS. Application Craft will not be responsible for correcting any errors not reproducible by Application Craft on the unmodified Software or errors caused by: (a) Your failure to implement all Updates and Upgrades provided by Application Craft under this Agreement; (b) changes to the operating system or environment which adversely affect the Software; (c) any alterations of or additions to the Software made by parties other than Application Craft; (d) use of the Software in a manner for which it was not designed; or (e) accident, negligence, or misuse of the Software. Application Craft will only be obligated to support a particular version of the Software for a period of one year from the date of commercial release of such version or through six months following the date of commercial release of the subsequent Software version (Update or Upgrade), whichever is longer. Support for any earlier versions or for errors not covered under this Agreement may be obtained, if available, at Application Craft's then-current rates.
7. PAYMENT. You agree to pay to Application Craft the subscription fees set forth in the Online Registration Form (“Subscription Fees”). You will pay all amounts due to Application Craft in full either (a) within 30 days from the date of each invoice or (b) if You pay by credit card, at the time of submitting the Online Registration Form for the initial Subscription Term and within 30 days of each notice of any renewal Subscription Term. Any undisputed amounts remaining unpaid following the payment due date, and all disputed payments that are paid following the resolution of such dispute, will bear interest accruing from the original payment due date through the date that such amounts are paid at the lower interest rate of (i) 1.0% per month and (ii) the highest interest rate allowed by law. You are solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Application Craft's net income) that are imposed or become due in connection with the subject matter of this Agreement. Subscription Fees are non-refundable except as expressly provided in this Agreement or as otherwise agreed to in writing by Application Craft in its sole discretion.
8. DELIVERY. Promptly following Your payment of the initial Subscription Fees, Application Craft shall make the Software available on a secure, password-protected website for You to access and download. The password provided to You for this purpose shall be considered Confidential Information protected under the terms of this Agreement.
9. WARRANTY AND DISCLAIMER.
9.1 LIMITED WARRANTY. Application Craft warrants that (a) the Software will not contain or transmit any computer code or other technology specifically designed to disrupt, disable, harm, or otherwise impede in any manner, any other software, hardware, computer system, or network (sometimes referred to as “malware”, “viruses” or “worms”); (b) any services performed by Application Craft pursuant to this Agreement will be performed in a good and workmanlike manner by appropriately qualified and trained personnel; and (c) for a period of 90 days following delivery of the Software to You, the Software will perform in all material respects in conformance with the Documentation provided by Application Craft with the Software. Application Craft's sole obligation under the limited warranty set forth in this Section 9.1 is to use its reasonable efforts to correct or replace any non-conforming Software once Application Craft has been made aware of such non-conformance or, in Application Craft's sole discretion, to terminate this Agreement (in which event, You will immediately stop using the Software) and refund the Subscription Fees paid by You to Application Craft for the then-current Subscription Term. Application Craft will have no responsibility if the Software has been altered in any way or if the failure arises out of use of the Software other than in a Application Craft recommended hardware configuration. Any such misuse, accident, abuse, modification, or misapplication of the Software will void the warranty above.
9.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, APPLICATION CRAFT DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
10. LIMITATION OF LIABILITY.
10.1 NO CONSEQUENTIAL OR RELATED DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY'S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID AND PAYABLE BY YOU TO APPLICATION CRAFT DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
10.3 EXCEPTIONS. The exclusions and limitations of liability in this Section 10 will not apply to (a) Application Craft's indemnification obligations under Section 11; (b) each party's confidentiality obligations under Section 12; and (c) any unauthorized use of the intellectual property rights of one party by the other party.
11.1 INDEMNITY. Application Craft will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Software as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (“Claim”), and shall indemnify You for any damages, attorney fees, and legal costs finally awarded against You as a result of such Claim; provided that You (a) promptly give Application Craft written notice of such Claim; (b) give Application Craft sole control of the defense and settlement of such Claim (provided that Application Craft may not settle any Claim against You unless the settlement unconditionally releases You of all liability); and (c) provide to Application Craft all reasonable assistance, at Application Craft's expense.
11.2 EXCEPTIONS. Application Craft's will have no obligation to indemnify You for any Claim under Section 11.1 to the extent that the Claim results from: (a) modifications to the Software made by a party other than Application Craft, if the infringement or misappropriation would not have occurred but for such modifications; (b) the combination, operation, or use of the Software with equipment, devices, software, systems, or data not supplied, approved, or intended by Application Craft, if the infringement or misappropriation would not have occurred but for such combination, operation, or use; (c) Your failure to use updated or modified Software provided by Application Craft to avoid infringement or misappropriation; (d) Your failure to stop using the Software after receiving written notice to do so from Application Craft in order to avoid infringement or misappropriation; or (e) Your use of the Software other than as authorized by this Agreement.
11.3 RIGHT TO AMELIORATE DAMAGES. If use of the Software is, or in Application Craft's reasonable opinion is likely to be, subject to a Claim under Section 11.1, Application Craft may, at its sole option and at no additional charge to You: (a) procure for You the right to continue using the Software; (b) replace or modify the Software so that it is non-infringing and substantially equivalent in function to the original Software; or (c) if options (a) and (b) above are not accomplished despite Application Craft's reasonable efforts, terminate this Agreement (in which event, You will immediately stop using the Software) and refund the Subscription Fees paid by You to Application Craft for the then-current Subscription Term.
11.4 SOLE REMEDY. THIS SECTION 11 SETS FORTH APPLICATION CRAFT'S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE SOFTWARE.
12. CONFIDENTIALITY. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may share certain information of a confidential nature during the Subscription Term. “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that should reasonably have been understood by the Receiving Party due to legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including, without limitation, source code for the Software; any other non-public source code of either party; and any non-public product, service, technical, marketing, business, financial, or other information. The Receiving Party agrees, for itself and any Affiliate, agents, and employees, that it will not publish, disclose, or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the confidentiality of the other party's Confidential Information as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. Without granting any right or license, the Disclosing Party agrees that the foregoing will not apply with respect to information that the Receiving Party can document (a) is in the public domain and is available at the time of disclosure or which thereafter enters the public domain and is available, through no improper action or inaction by the Receiving Party or any Affiliate, agent, or employee (provided, however, that an item of Confidential Information shall not be considered in the public domain due to the fact that the individual elements that comprise that item can be found in the public domain); (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party without violating any obligations to the Disclosing Party; (d) is independently developed by the Receiving Party without reference to such Confidential Information; or (e) is compelled to be disclosed pursuant to any statutory or regulatory authority, court order, or legal process, provided the Disclosing Party is given prompt notice of such requirement and the scope of such disclosure is limited to the extent possible.
13. GOVERNING LAW AND JURISDICTION. This Agreement will be governed by and interpreted in accordance with the laws of England, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in and the parties irrevocably consent to personal jurisdiction and venue therein.
14.1 ASSIGNMENT. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.2 SEVERABILITY. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed will be deleted and the remaining provisions of this Agreement will continue in full force and effect.
14.3 NOTICES. All notices provided hereunder will be in writing, delivered personally, by e-mail or sent by overnight courier, registered or certified mail to the addresses specified in the Online Registration Form or such other address as may be specified in writing by notice given in accordance with this Section 14.3. All such notices will be deemed to have been given: (a) upon receipt when delivered personally; (b) upon receipt when delivered by e-mail; or (c) in the case of overnight courier, one weekday after delivery to the overnight courier.
14.4 WAIVER. Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.5 FORCE MAJEURE. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.
14.6 INDEPENDENT CONTRACTORS. Application Craft and You are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship between Application Craft and You.
14.7 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed an original, and all of which together will constitute one and the same agreement.
14.8 AMENDMENTS; ENTIRE AGREEMENT. No modification, change, or amendment of this Agreement shall be binding upon the parties, except by mutual express consent in writing of subsequent date duly signed by the authorized representatives of each of the parties. This Agreement, including properly incorporated Online Registration Form(s), constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.
BY CLICKING THE “AGREE” BUTTON OR, IF YOU HAVE ALREADY CLICKED THE “AGREE” BUTTON, BY CONTINUING TO ACCESS OR USE THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT (a) YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, (b) YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND (c) YOUR OBLIGATIONS UNDER THIS AGREEMENT ARE BINDING AND ENFORCEABLE.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.