TINYBRICK SOFTWARE END USER LICENSE AGREEMENT (“AGREEMENT”) PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE.
By downloading or using the Software you agree to this Agreement on your behalf as an individual and on behalf of your employer or another entity with which you are associated, if such employer or entity has not previously accepted these terms (you and such employer or other entity, collectively, the “Licensee”) and agree to be bound by its terms and conditions; and b) you are accepting electronic delivery of the Software. If the Licensee has not previously accepted these terms, you represent and warrant that you have full legal authority to bind the Licensee to these terms and conditions. This Agreement, is a legal agreement between the Licensee and TinyBrick, LLC (“TinyBrick”), an Idaho Limited Liability Company having its principal place of business at 218 Ricks Avenue, STE 100, Rexburg, Idaho, 83440 U.S.
1. This Agreement constitutes the entire agreement concerning Licensee’s use of the Software. This Agreement replaces and supersedes any verbal understandings, written communications and representations, including but not limited to purchase order documentation, except those contained in a subsequent writing, including but not limited to a license agreement with terms for support and an accompanying ordering schedule, in all cases signed by an authorized TinyBrick representative.
1.1. Subject to Licensee’s compliance with the terms and conditions of this Agreement and any applicable payment terms, TinyBrick grants Licensee a non-transferable, non-assignable, non-sublicensable, worldwide license solely during the Term to use, modify and create derivative works in respect of the Software, solely for internal purposes, in accordance with the Software’s technical documentation. Such license is limited to the maximum number of designated Magento™ Instances as approved in writing by TinyBrick.
1.2. In the event that Licensee’s actual number of Magento™ Instances of a particular Software license exceeds the licensed number of Designated Magento™ Instances on such license, Licensee shall promptly provide TinyBrick with written notice and pay TinyBrick the fees required to license such additional Magento™ Instance(s) in accordance with the commercial terms set out in the Ordering Schedule.
1.3. Licensee shall implement reasonable controls to ensure that it does not exceed the maximum number of licensed Magento™ Instances using the Software. TinyBrick 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. TinyBrick 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 copies of the Software as it requires for purpose of exercising its rights under this Agreement.
1.5. Licensee may transfer the Software on a permanent basis to a single replacement Magento™ Instance without charge. Licensee agrees to provide TinyBrick with written notice, including the new Magento™ Instance URL, within five (5) days after such transfer.
1.6. Licensee acknowledges that portions of the Software are also freely available to the public under TinyBrick’s open source version of the Software, 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 of such open source versions of the Software, whether used on a production or non-production Server, shall be deemed use of the Software for purposes of the calculation of fees payable under the Agreement.
2. License Exclusions
2.1. Except as expressly authorized herein, Licensee shall not:
a. use or deploy the Software on any Magento™ Instance in excess of the number of Designated Magento™ Instances;
b. distribute, sublicense, disclose, market, rent, lease, remote computing services, networking, batch processing or transfer to any third party the Software 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 TinyBrick trademark, trade name or service mark is granted hereunder.
3. Fees and Payment Terms Licensee shall pay TinyBrick the fees specified by TinyBrick. All fees shall be due and payable within fourteen (14) days of the date of invoice. Licensee is responsible for all taxes concerning the Software and/or services, excluding taxes based on TinyBrick’s income. Overdue payments shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law.
4. Title and Protection
4.1. TinyBrick retains title to all portions of the Proprietary Material and any copies thereof. Licensee agrees to maintain strict controls to ensure that such materials are treated confidentially and safeguarded with at least the same degree of care that it takes to protect its own information of a similar nature, which in no event shall be less than a reasonable degree of care, and shall not disclose the Proprietary Material to anyone other than those of its employees or consultants under nondisclosure obligations, having a need to know for purposes consistent with this Agreement. Licensee shall affix, to each full or partial copy of the Proprietary Materials or any portion thereof 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 Agreement.
4.2. Licensee acknowledges that the Software includes certain open source and other third-party software which is governed by the applicable license terms thereof. A list of such software, as amended from time to time, including the links applicable to related license terms and conditions thereof is specified in the product release notes for each Software version. The use of such 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 license agreement shall prevail solely with respect to such software products. TinyBrick makes no indemnity with respect to any open source or third-party software included within the Software, and for greater clarity, the indemnity set out in Section 5 (Patent and Copyright Indemnity) below does not apply to any such software.
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 to such product are limited by the terms of this Agreement, pursuant to applicable FAR and/or DFARS and successor regulations.
5. Patent and Copyright Indemnity TinyBrick shall indemnify and defend Licensee against any claims that the Software infringes any United States patent or United States copyright; provided that TinyBrick 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, TinyBrick may 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 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. TinyBrick shall have no liability if the alleged infringement is based on a modification of the Software by anyone other than TinyBrick; is based on use of the Software with one or more Magento™ Instances not listed in a Schedule; or is based on the use of the Software other than in accordance with the documentation. This Section 5 states TinyBrick’s entire liability and Licensee’s exclusive remedy for infringement.
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”; or (ii) 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. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
6.3. Within thirty (30) days after termination of the Software license or expiration of the Term, Licensee shall certify in writing to TinyBrick 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.
7.1. Warranty for Software. TinyBrick warrants for a single period of ninety (90) days commencing upon TinyBrick’s electronic delivery of the Software to Licensee that the Software will perform the functions described in the specifications contained in the documentation provided with the Software. TinyBrick will undertake reasonable efforts to correct any reported error in accordance with any terms and conditions of support purchased by Licensee. TinyBrick 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 TinyBrick WITH RESPECT TO THE SOFTWARE PROVIDED BY TinyBrick. TinyBrick MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. TinyBrick’S EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, TinyBrick RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE SOFTWARE.
8. Limitation of Liability
8.1. LIABILITY EXCLUSIONS. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR (i) THE TORT OF FRAUD OR DECEIT (ii) DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE OR (iii) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. SAVE FOR THE FOREGOING, NEITHER PARTY ACCEPTS AND HEREBY EXCLUDES ANY LIABILITY FOR LOSS OF OR DAMAGE TO LICENSEE’S TANGIBLE PROPERTY OTHER THAN THAT CAUSED BY ITS NEGLIGENCE AND HEREBY EXCLUDES ANY OTHER LIABILITY FOR NEGLIGENCE ARISING PURSUANT TO THE TERMS OF THIS AGREEMENT. SAVE FOR THE FOREGOING, NEITHER PARTY ACCEPTS AND HEREBY EXCLUDES ANY LIABILITY FOR LOSS OF OR DAMAGE TO LICENSEE’S TANGIBLE PROPERTY OTHER THAN THAT CAUSED BY ITS NEGLIGENCE AND HEREBY EXCLUDES ANY OTHER LIABILITY FOR NEGLIGENCE ARISING PURSUANT TO THE TERMS OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL EITHER PARTY 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 OR ANY OTHER 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 WILL TinyBrick BE LIABLE FOR DAMAGES, RESTITUTION OR LOSSES, THAT EXCEED, IN THE AGGREGATE, FOR EACH RESPECTIVE BREACH OR SERIES OF RELATED BREACHES, THE AMOUNT OF FEES PAID BY LICENSEE FOR THE SOFTWARE LICENSE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH DAMAGES OR LOSSES OCCURRED.
9. Support Services Terms and Conditions TinyBrick will provide support services and Updates for the Software in accordance with the terms and conditions of support purchased by Licensee.<br /><br />
10. Notices 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 first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to TinyBrick shall be sent to the Contract Administrator.
11. Assignment Licensee may not assign this Agreement without the prior written consent of TinyBrick; 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. Any prohibited assignment shall be null and void.
12. General This Agreement is made in and shall be governed by the laws of the State of Idaho, excluding choice of law principles. All proceedings shall be conducted in English. Venue for all proceedings shall be Madison County, Idaho. 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 TinyBrick, 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 party. This Agreement may be executed in counterparts.
13. Definitions “Modifications” means any code developed by Licensee or any third party, including without limitation, configuration, integrations, implementations, or localizations to the base Software product. The term “Modifications” excludes Updates provided by TinyBrick as part of Support Services. “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 from TinyBrick, 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 TinyBrick; 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 the Proprietary Material. “Magento™ Instance” means any Magento™ Ecommerce Application operating from a single installation, whether on one server or multiple servers, plus all associated non-production servers used for development, testing, training and other non-operational business transactions. For the avoidance of doubt, if a Magento™ Instance is located at a different Primary Domain and/or requires a separate installation and configuration of the Magento™ Application, then a Separate license is required for each such instance. “Software” means TinyBrick proprietary Magento™ Module software, 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 software programs described in Section 4.2. “Software” does not include any Modifications. “Term” means the period commencing upon TinyBrick’s electronic delivery of the Software to Licensee and expiring on the date specified in the Ordering Schedule, unless extended by the mutual written consent of both parties. “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 TinyBrick’s supported customers at no additional cost or for media and handling charges only. Updates shall not include any options or future products which TinyBrick sells separately.