******************************************************************************** **** **** *** *** ** VORTEX COMMERCE SOFTWARE ** ** LICENSING AGREEMENT (EULA) ** *** *** **** **** Please read this licensing document carefully, before using your Vortex Commerce module. ________________________________________________________________________________ DATE OF LAST REVISION: 25 November 2012 ________________________________________________________________________________ 1. BACKGROUND 1.1. This is a software licensing agreement, between Vortex Commerce Ltd, trading as Vortex Commerce (the Licensor) and its customers (Licensees), covering the purchase, usage and distribution of Magento extensions (products) and materials, produced and marketed by Vortex Commerce. ________________________________________________________________________________ 2. DEFINITIONS 2.1. Affiliates - any person or company directly associated with Vortex Commerce, in company structure, in partnership, or as an authorized reseller. 2.2. Confidential Information - including, but not limited to any information relating to the products and materials, systems, processes, business affairs, employees, methods of operation, or proposed methods of operation of the licensor. 2.3. EULA - End User License Agreement. 2.4. External Party - any person or single entity, which is not the licensee, Vortex Commerce, or its affiliates. 2.5. Intellectual Property Rights - all intellectual property rights, wherever in the world, registered or unregistered, including any application or right of application for such rights. These rights include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business and domain names, trademarks, service marks, unfair competition rights, patents, petty patents and rights in designs. 2.6. Licensor - this term exclusively relates to Vortex Commerce Ltd, trading as Vortex Commerce. 2.7. Licensee - you. 2.8. Magento Installation - a single installation of Magento, as downloadable from www.magentocommerce.com, which is installed in a single directory location on a live server. 2.9. Products - all software produced for sale, trial, or otherwise marketed by Vortex Commerce or its affiliates. 2.10. Materials - all documentation, services and intellectual property supplied by the licensor to the licensee. ________________________________________________________________________________ 3. ACCEPTANCE OF TERMS & CONDITIONS 3.1. You agree to the full terms of this agreement, by installing, purchasing, copying, or using software, produced, or marketed by Vortex Commerce. 3.2. If you do not agree to the terms of this agreement, do not install, copy, or use the software. ________________________________________________________________________________ 4. LICENSE 4.1. Upon purchase, the Licensee is granted a non-exclusive license, which is limited to: 4.1.1. Usage of the Materials on a single Magento installation, unless otherwise permitted by a paid license option, as outlined in this agreement. 4.1.2. Making copies of the Materials for back-up, archival or other security purposes. 4.1.3. Modification of code for the specific needs of the licensee and the license option purchased, however, modification for use by any external party is in strict breach of this agreement. ________________________________________________________________________________ 5. LICENSE RESTRICTIONS 5.1. You may not use, copy, modify or transfer the Product or Materials (including any related documentation) or any copy, in whole or in part, except as expressly provided for in this license. 5.2. If you transfer possession of any copy of Product / Materials to another party except as provided above, your license will be automatically terminated. 5.3. You may not translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Product / Materials, except as expressly permitted by this Agreement. 5.4. You may not vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Materials. 5.5. This license is granted exclusively for the license options permitted at the time of purchase. Please ensure you have the correct license for your needs. ________________________________________________________________________________ 6. LICENSE OPTIONS 6.1. Use of this software is only permitted for the license option, paid for at the time of purchase. 6.2. The default License Option is for a single production Magento installation. Further license options must be purchased, if you wish to install the Product on additional Magento installations. 6.3. A single server License Option is available to cover the use of multiple Magento installations on a single server. This License Option is not available to providers of commercial hosting services, or any business whose primary activity is the provision of graphic design, IT, web development, or software related services. Purchase of this License Option by any such company, does not result in the provision of a license under this agreement and, a full refund may be granted upon return of all Products and Materials. 6.4. Vortex Commerce reserve the right to terminate this EULA, or request additional payment, including a nominal service charge, should the Product be installed, or used by the licensee, for additional live (production) domains, sub-domains, Magento installations, or servers outside of the approved license option. 6.5. All License Options permit you to install and test the software in an unlimited number of development installations, providing that they are under the sole ownership or control of the Licensee, are for development purposes only and, are not marketed for commercial gain. 6.6. Discounts for multiple installation or multiple server licenses are available at time of purchase, or via your My Account page at www.vortexcommerce.com, or by contacting Vortex Commerce by phone, email, or contact form. ________________________________________________________________________________ 7. NO TRANSFER 7.1. Upon trial or purchase, the Materials are licensed only to you, the licensee. 7.2. Any unauthorized renting, leasing, sub-licensing, selling, assigning, pledging, creation of derivative works, transfer, disclosure, porting of the product to other platforms, or other disposal of the Product or Materials, on a temporary or permanent basis, is strictly prohibited, without the prior written consent of the Licensor. 8. OWNERSHIP OF MATERIALS AND COPIES 8.1. The Materials and related documentation are copyrighted works of Vortex Commerce, and are also protected under applicable database and copyright laws. The Licensor retains ownership of the Materials and all subsequent copies of the Materials, regardless of the form in which the copies may exist. This license is not a sale of the original Materials, or any component or copy of these Materials. ________________________________________________________________________________ 9. UNDERTAKINGS YOU UNDERTAKE TO: 9.1. ensure that, prior to use of the Materials by your employees or agents, all such parties are notified of this license and the terms of this Agreement; 9.2. reproduce and include our copyright notice (or such other party's copyright notice as specified on the Materials) on all and any copies of the Materials, including any partial copies of the Materials; 9.3. hold all drawings, specifications, data (including object and source codes), software listings and all other information relating to the Materials confidential and not at any time, during this license or after its expiry, disclose the same, whether directly or indirectly, to any third party without the Licensor's consent. ________________________________________________________________________________ 10. CONFIDENTIALITY The licensee agrees and undertakes: 10.1. that Vortex Commerce and its affiliates may collect technical information, provided by you and, gathered during the sale and service of products and materials. This information will not be disclosed to any external party without your prior consent and, will be used solely for the benefit of your own support and/or the enhancement of products and services, provided by Vortex Commerce. 10.2. to keep all confidential information provided by the licensor in the form of products and/or materials, strictly confidential and, warrant that you will protect the intellectual property rights of the licensor at all times. This prohibits any sharing of confidential information or intellectual property to any external party, without the express authorization of Vortex Commerce. 10.3. that it will promptly advise the licensor of any unauthorised use or disclosure of the Confidential Information, of which it becomes aware. ________________________________________________________________________________ 11. LIMITED WARRANTY 11.1. Subject to the limitations and exclusions of liability below, the Licensor warrants that (a) the diskette(s) on which the Materials are furnished will be free from material defects under normal use; and that (b) the copy of the program in the package will materially conform to the documentation which accompanies the package. The Warranty Period is 90 days from the date of delivery to you. 11.2. The Licensor will also indemnify you for personal injury or death solely and directly caused by any defect in its products or the negligence of its employees. 11.3. The Licensor shall not be liable under the said warranty above if the Materials fail to operate in accordance with the said warranty as a result of any modification, variation or addition to the Materials not performed by the Licensor or caused by any abuse, corruption or incorrect use of the Materials, including use of the Materials with equipment or other software which is incompatible. ________________________________________________________________________________ 12. BUG-FIXING GUARANTEE 12.1. Vortex Commerce provide a lifetime guarantee that all bugs notified in writing to Vortex Commerce, will be resolved without charge, with the exclusion of: 12.1.1. Bugs relating to conflicts with 3rd party products. 12.1.2. Conflicts with heavily modified Magento themes. 12.1.3. Conflicts with modified core code. 12.2. Modification of the product by the licensee invalidates the bug fixing guarantee. ________________________________________________________________________________ 13. PRODUCT SUPPORT 13.1. All software purchased from Vortex Commerce carries a minimum level of 'Bronze Support', inclusive of 30 minutes dedicated support time, to help you troubleshoot and configure the software to your requirements. 13.2. Additional support packages, including professional installation, are available at the lowest possible rates and, may be purchased via www.vortexcommerce.com, either at the time of purchasing your software, or at any time afterwards. ________________________________________________________________________________ 14. SERVICE LEVEL AGREEMENTS 14.1. Bug Fixes - all bug fixes covered by our bug-fixing guarantee, will be resolved within 28 days, or in the rare case that a fix is not possible, the notifying party will receive a proposed solution within this period, together with a 30 day period to terminate this agreement by means of refund. 14.2. Product Support - all Bronze Support requests, will receive a response within 48 hours Monday - Friday. ________________________________________________________________________________ 15. REFUNDS 15.1. Refund requests will be accepted within 15 days of any purchase, providing that this request is received from the Licensee in writing. 15.2. Any other offers of a refund from the licensor, to the licensee, will be made in writing and, are valid for 15 days from the date this option is advised. 15.3. All refunds are subject to the termination of this agreement. ________________________________________________________________________________ 16. NO OTHER WARRANTIES 16.1. The foregoing warranty is made in lieu of any other warranties, representations or guarantees of any kind, either expressed or implied, including, but not limited to, any implied warranties of quality, merchantability, fitness for a particular purpose or ability to achieve a particular result. You assume the entire risk as to the quality and performance of the Materials. Should the Materials require customization to meet your requirements, you (and not the Licensor nor any licensed reseller) assume the entire cost of all necessary servicing, repair or correction, outside of our Bronze Support and Bug-Fixing Guarantee. The Licensor does not warrant that the Materials will meet your requirements or that its operation will be uninterrupted or error free. ________________________________________________________________________________ 17. LIMITATION OF LIABILITY 17.1. The Licensor's entire liability and your exclusive remedy shall be: 17.2. the replacement of any Product or Materials not meeting the Licensor's 'Limited Warranty' and which is returned to the Licensor together with dated proof of purchase; 17.3. the full refund of the purchase price of the Materials, subject to a written bug-fixing request, which is unresolved within 28 days, subject to the refund and bug-fixing terms of this agreement. ________________________________________________________________________________ 18. EXCLUSION OF LIABILITY 18.1. Except in respect of personal injury or death caused directly by the negligence of the Licensor, in no event will the Licensor be liable to you for any damages, including any lost profits, lost savings, loss of data or any indirect, special, incidental or consequential damages arising out of the use of or inability to use such Materials, even if the Licensor has been advised of the possibility of such damages. Nothing in this Agreement limits liability for fraudulent misrepresentation. ________________________________________________________________________________ 19. YOUR STATUTORY RIGHTS 19.1. This license gives you specific legal rights and you may also have other rights that vary from country to country. Some jurisdictions do not allow the exclusion of implied warranties, or certain kinds of limitations or exclusions of liability, so the above limitations and exclusions may not apply to you. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the above limitations and exclusions shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. If any part of the above limitations or exclusions is held to be void or unenforceable, such part shall be deemed to be deleted from this Agreement and the remainder of the limitation or exclusion shall continue in full force and effect. Any rights that you may have as a consumer (i.e. a purchaser for private as opposed to business, academic or government use) are not affected. ________________________________________________________________________________ 20. TERM 20.1. The license is effective until terminated. You may terminate it at any time by destroying the Materials together with all copies in any form. 20.2. Vortex Commerce reserve the right to terminate this EULA, without prejudice to any other rights, upon conditions set out elsewhere in this Agreement, or if you fail to comply with any term or condition of this Agreement. 20.3. You may also voluntarily return the Materials to Vortex Commerce in order to end the term of the license. 20.4. Upon termination, you agree to destroy the Materials together with all copies in any form. 20.5. Following termination, you continue to warrant against the production or usage or unauthorized copies of this software. ________________________________________________________________________________ 21. INDEMNITY 21.1. The licensee will indemnify the licensor and will keep the licensor indemnified against all damages, losses and expenses arising as a result of any breach by the licensee of any term of this agreement. ________________________________________________________________________________ 22. UPDATES, DOWNLOADS AND RENEWALS 22.1. Upon purchase, you are granted 12 months of free product updates and downloads, which may be accessed via your My Account page, at www.vortexcommerce.com. 22.2. After 12 months, you may renew your subscription to product updates and downloads, including new product features and Magento version compatibility, for 50% of the full price at the time of renewal. ________________________________________________________________________________ 23. EXPORT 23.1. You will comply with all applicable laws, rules, and regulations governing export of goods and information, including the laws of the countries in which the Materials were created. In particular, you will not export or re-export, directly or indirectly, separately or as a part of a system, the Materials or other information relating thereto to any country for which an export license or other approval is required, without first obtaining such license or other approval. ________________________________________________________________________________ 24. GENERAL 24.1. This Agreement constitutes the complete and exclusive statement of the Agreement between the Licensor and you with respect to the subject matter of this Agreement and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to that subject matter. 24.2. Any clause in this Agreement that is found to be invalid or unenforceable shall be deemed deleted and the remainder of this Agreement shall not be affected by that deletion. 24.3. Failure or neglect by either party to exercise any of its rights or remedies under this Agreement will not be construed as a waiver of that party's rights nor in any way affect the validity of the whole or part of this Agreement nor prejudice that party's right to take subsequent action. 24.4. This Agreement is personal to you and you may not assign, transfer, sub-contract or otherwise part with this Agreement or any right or obligation under it without the Licensor's prior written consent. ________________________________________________________________________________ 25. JURISDICTION 25.1. This agreement shall be governed by and construed in accordance with English law and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of England and Wales in respect of any claim, dispute or difference arising out of or in connection with this agreement. ________________________________________________________________________________ 26. CHANGES TO THIS AGREEMENT 26.1. Vortex Commerce reserve the right to update this agreement at any time, without notification. ________________________________________________________________________________ 27. FURTHER INFORMATION Should you have any questions concerning this Agreement you may contact legal@vortexcommerce.com. ********************************************************************************