Terms of Service for Commercial Editions (MAE & PE)

License agreement

1. Preamble: This Agreement, signed on Sep 2, 2014 [hereinafter: Effective Date] governs the relationship between The Licensee, a duly registered company, (hereinafter: Licensee) and Xtraball, a duly registered company in France whose principal place of business is 3 avenue Didier Daurat 31400 Toulouse, France (Hereinafter: Licensor). This Agreement sets the terms, rights, restrictions and obligations on using [Siberian CMS Multi-Apps Edition (Siberian MAE) and/or Siberian CMS Platform Edition(Siberian PE)] (hereinafter: The Software) created and owned by Licensor, as detailed herein
2. License Grant: Licensor hereby grants Licensee a Personal, Non-assignable & non-transferable, Commercial, Royalty free, Including the rights to create but not distribute derivative works, Non-exclusive license, all with accordance with the terms set forth and other legal restrictions set forth in 3rd party software used while running Software.
   1. Limited: Licensee may use Software for the purpose of:
      1. Running Software on one Licensee’s Website and Designated Production Server Instance;
      2. Running Software on one Licensee’s Non-Production Server Instance, for technical and development tests;
      3. Allowing 3rd Parties to run Software on Licensee’s Website and Designated Production Server Instance;
      4. Publishing Software’s output to Licensee and 3rd Parties;
      5. Distribute verbatim copies of Software’s output (including compiled binaries);
      6. Modify Software to suit Licensee’s needs and specifications.
   2. Non Assignable & Non-Transferable: Except as expressly authorized herein, Licensee may not assign or transfer his rights and duties under this license.
   3. Commercial, Royalty Free: Licensee may use Software for any purpose, including paid-services, without any royalties
   4. Including the Right to Create Derivative Works: Licensee may create derivative works based on Software, including amending Software’s source code, modifying it, integrating it into a larger work or removing portions of Software, as long as no distribution of the derivative works is made
   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 Production Server is inoperative due to a malfunction beyond the control of Licensee.
   6. With support & updates: Licensor shall provide Licensee support for one year as follows in the SUPPORT SERVICES TERMS AND CONDITIONS. Updates and Upgrades are free for lifetime.
   7. Licensor shall retain full title in Trademarks, and any trademarks and tradenames contained, including Software’s names, logos, and all other intellectual property. Unless specifically stated in this license, no license shall be made to use, associate or affiliate Software with Licensee in any manner. Licensee may not use Software’s name, tradename, trademarks or logo when distributing derivative works of software to 3rd parties.
   8. If Software is covered by Patents, Licensor grants Licensee a non-exclusive, worldwide, royalty-free patent license under Licensor’s essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of Software.
3. Term & Termination: The Term of this license shall be until terminated. Licensor may terminate this Agreement, including Licensee’s license in the case where Licensee :
   1. became insolvent or otherwise entered into any liquidation process; or
   2. exported The Software to any jurisdiction where licensor may not enforce his rights under this agreements in; or
   3. Licensee was in breach of any of this license’s terms and conditions and such breach was not cured, immediately upon notification; or
   4. Licensee in breach of any of the terms of clause 2 to this license; or
   5. Licensee otherwise entered into any arrangement which caused Licensor to be unable to enforce his rights under this License.
4. Payment: In consideration of the License granted under clause 2, Licensee shall pay Licensor a fee, via Credit-Card, PayPal or any other mean which Licensor may deem adequate. Failure to perform payment shall construe as material breach of this Agreement. Recurring monthly payments for “hosted by us” editions, are automatically processed on a month to month basis. If it can be processed when the contrat comes up for renewal, the Licensee receives an email from the Licensor to inform him about the payment failure. From this time, the Licensee has 48h to processed a new payment otherwise all the Licensee data will be deleted from the server.
5. Upgrades, Updates and Fixes: Licensor may provide Licensee, from time to time, with Upgrades, Updates or Fixes, as detailed herein and according to his sole discretion. Licensee hereby warrants to keep The Software up-to-date and install all relevant updates and fixes, and may, at his sole discretion, purchase upgrades, according to the rates set by Licensor. Licensor shall provide any update or Fix free of charge; however, nothing in this Agreement shall require Licensor to provide Updates or Fixes.
   1. Upgrades: for the purpose of this license, an Upgrade shall be a material amendment in The Software, which contains new features and or major performance improvements and shall be marked as a new version number. For example, should Licensee purchase The Software under version 1.X.X, an upgrade shall commence under number 2.0.0.
   2. Updates: for the purpose of this license, an update shall be a minor amendment in The Software, which may contain new features or minor improvements and shall be marked as a new sub-version number. For example, should Licensee purchase The Software under version 1.1.X, an upgrade shall commence under number 1.2.0.
   3. Fix: for the purpose of this license, a fix shall be a minor amendment in The Software, intended to remove bugs or alter minor features which impair the The Software’s functionality. A fix shall be marked as a new sub-sub-version number. For example, should Licensee purchase Software under version 1.1.1, an upgrade shall commence under number 1.1.2.
6. Liability:  To the extent permitted under Law, The Software is provided under an AS-IS basis. Licensor shall never, and without any limit, be liable for any damage, cost, expense or any other payment incurred by Licensee as a result of Software’s actions, failure, bugs and/or any other interaction between The Software  and Licensee’s end-equipment, computers, other software or any 3rd party, end-equipment, computer or services.  Moreover, Licensor shall never be liable for any defect in source code written by Licensee when relying on The Software or using The Software’s source code.
7. Servers configuration for “hosted by us” versions (monthly payments): Clients of Siberian “hosted by us” versions, which include but are not limited to, Platform Edition and Multi-Apps Edition, have the software install on a specific server or on a specific instance of a server. This server or instance has not unlimited capacities. For Platform Edition subscribers, the server main configuration items are as follow: Processor: 2vCores 2.4Ghz, 8Go of RAM, 40Go of space disk (SSD). For Multi-Apps Edition subscribers, the server main configuration items are as follow: Processor: 1vCore 2.4Ghz, 4Go of RAM, 20Go of space disk (SSD).
8. Warranty:  
   1. Intellectual Property: Licensor hereby warrants that The Software does not violate or infringe any 3rd party claims in regards to intellectual property, patents and/or trademarks and that to the best of its knowledge no legal action has been taken against it for any infringement or violation of any 3rd party intellectual property rights.
   2. No-Warranty: The Software is provided without any warranty; Licensor hereby disclaims any warranty that The Software shall be error free, without defects or code which may cause damage to Licensee’s computers or to Licensee, and that Software shall be functional. Licensee shall be solely liable to any damage, defect or loss incurred as a result of operating software and undertake the risks contained in running The Software on License’s Server[s] and Website[s].
   3. Prior Inspection: Licensee hereby states that he inspected The Software thoroughly and found it satisfactory and adequate to his needs, that it does not interfere with his regular operation and that it does meet the standards and scope of his computer systems and architecture. Licensee found that The Software interacts with his development, website and server environment and that it does not infringe any of End User License Agreement of any software Licensee may use in performing his services. Licensee hereby waives any claims regarding The Software’s incompatibility, performance, results and features, and warrants that he inspected the The Software.
9. No Refunds: Licensee warrants that he inspected The Software according to clause 7(c) and that it is adequate to his needs. Accordingly, as The Software is intangible goods, Licensee shall not be, ever, entitled to any refund, rebate, compensation or restitution for any reason whatsoever, even if The Software contains material flaws.
10. 30-Day Money-Back Guarantee: This program is available for the “hosted by us” version (monthly payments). During the first 30 days of your purchase you can ask to stop and being refunded for the purchase of this service. No question, full refund in the 48h following your request made by email or support ticket. No other purchases can be refunded (e.g. developer accounts, modules, or any other purchase beside this service). No refund will be processed outside this 30 days period.
11. Indemnification: Licensee hereby warrants to hold Licensor harmless and indemnify Licensor for any lawsuit brought against it in regards to Licensee’s use of The Software in means that violate, breach or otherwise circumvent this license, Licensor’s intellectual property rights or Licensor’s title in The Software. Licensor shall promptly notify Licensee in case of such legal action and request Licensee’s consent prior to any settlement in relation to such lawsuit or claim.
12. Governing Law, Jurisdiction: Licensee hereby agrees not to initiate class-action lawsuits against Licensor in relation to this license and to compensate Licensor for any legal fees, cost or attorney fees should any claim brought by Licensee against Licensor be denied, in part or in full.
13. Definitions
    1. “Designated Production Server” shall mean the Server running the software in the purpose of a Commercial use 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 Licensee.
    2. “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.
    3. “Server” means each physical or virtual server from which a single instance of the Software is accessed and used either for production purposes (“Designated 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 one Server license is required for such instances;
    4. “Software” means Xtraball’s proprietary software solution known as the Siberian Multi-Apps Edition (MAE), 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 LICENCE SUMMARY Section. “Software” does not include any Modifications.
    5. “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 Xtraball’s supported customers at no additional cost or for media and handling charges only. Updates shall not include any options or future products which Xtraball sells separately.