Sitecore Limited License Agreement
LICENSEE’S USE OF THE SITECORE SOFTWARE IS SUBJECT TO
LICENSEE’S FULL ACCEPTANCE OF THE TERMS, CONDITIONS, DISCLAIMERS AND LICENSE
RESTRICTIONS SET FORTH IN THIS AGREEMENT.
1. License Grant: Licensor grants
Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable
license, to use the Sitecore Software in compliance with all applicable laws,
in object code form only, subject to the terms and conditions
set forth in this License Agreement. Except as expressly authorized by
this Agreement, “Licensee” as used herein does not include any other entity or
person, including any present or future subsidiary or affiliate of Licensee, or
any entity or person owning any interest in Licensee at present or in the
future.
“Sitecore Software” means the software that is licensed by Licensor in this Agreement.
1.1
License Key: Licensee will be
provided a License Key that gives Licensee access to the Sitecore Software. The
Sitecore Software may be used only on the equipment with the features and
limitations specified in the License Key. The License Key shall be time-limited
until full payment of the license fee has been received by Licensor. The
License Key may limit the number of Servers on which the Sitecore Software may
be installed. For purposes of this Agreement, one Server is defined as one
installation and / or application instance on a physical or virtual Server with
a processing power for the web process equivalent to at most eight CPU cores.
For example, one physical Server may contain eight single core CPUs, four dual
core CPUs, two quad core CPUs or one eight core CPU. A Server with three or
four quad core CPUs would therefore count as two Servers. A virtual server will be counted as the number of
physical cores allocated or processor core equivalents allocated to the virtual
server. For example, one virtual server with two physical processor cores
allocated, or with the equivalent of two simulated processor cores allocated,
would be counted as the equivalent of one physical dual-core processor server.
1.2
Intellectual Property Rights: Sitecore CMS Software is patented, U.S.
Patent No. 7,856,345. Ownership of the
Sitecore Software, and all worldwide rights, title and interest in and to the
Intellectual Property associated with the Sitecore Software shall remain solely
and exclusively with Licensor or with third parties that license modules included
with the Sitecore Software. Licensee shall retain intact all applicable
Licensor copyright, patent and/or trademark notices on and in all copies of the
Sitecore Software. All rights, title, and interest in Sitecore Software not
expressly granted to Licensee in this Agreement are reserved by Licensor.
“Intellectual Property” as used in this Agreement means any and all patents,
copyrights, trademarks, service marks and trade names (registered and
unregistered), trade secrets, know-how, inventions, licenses and all other
proprietary rights throughout the world related to the authorship, origin,
design, utility, process, manufacture, programming, functionality and operation
of Sitecore Software and its Derivative Works, any product containing any
components of the Sitecore Software, all documentation (electronically stored
or otherwise), including manuals and marketing materials, regarding the
Sitecore Software, and any Confidential Information associated with the
Sitecore Software.
1.3
Confidential Information:
The
term “Confidential Information” shall include any information, whether tangible
or intangible, including, but not limited to, techniques, discoveries,
inventions, ideas, processes, software (in source or object code form),
designs, technology, technical specifications, flow charts, procedures,
formulas, concepts, any financial data, and all business and marketing plans
and information, in each case which is maintained in confidence by the
disclosing party (“Disclosing Party”) and disclosed to the other party
(“Recipient”) hereunder. The failure by the Disclosing Party to designate any
tangible or intangible information as Confidential Information shall not give
Recipient the right to treat such information as free from the restrictions
imposed by this Agreement if the circumstances would lead a reasonable person
to believe that such information is Confidential Information.
Confidential Information does not include information which Recipient documents
(a) is now, or hereafter becomes, through no act or failure to act on the part
of Recipient, generally known or available to the public; (b) was rightfully in
Recipient’s possession prior to disclosure by the Disclosing Party; (c) becomes
rightfully known to Recipient, without restriction, from a source other than
the Disclosing Party and without any breach of duty to the Disclosing
Party; (d) is developed independently by Recipient without use of or
reference to any of the Confidential Information and without violation of any
confidentiality restriction contained herein; or (e) is approved by the
Disclosing Party for disclosure without restriction, in a written document
executed by a duly authorized officer of the Disclosing Party. Recipient shall
hold the Confidential Information received from the Disclosing Party in strict
confidence and shall not, directly or indirectly, disclose it, except as
expressly permitted herein. Recipient shall promptly notify the Disclosing
Party upon learning of any misappropriation or misuse of Confidential
Information disclosed hereunder. Notwithstanding the foregoing, Recipient shall
be permitted to disclose Confidential Information pursuant to a judicial or
governmental order, provided that Recipient provides the Disclosing Party
reasonable prior notice, and assistance, to contest such order.
1.4 Restrictions
on Use: Except as expressly
authorized by applicable law or by Licensor in writing, Licensee shall not
copy, in whole or in part, the Sitecore Software or documentation, or modify,
disassemble, decompress, reverse compile, reverse assemble, reverse engineer,
or translate any portion of the Sitecore Software. Licensee shall not rent,
lease, lend, distribute, sell, assign, license, or otherwise transfer the
Sitecore Software, or create Derivative Works of the Sitecore Software.
1.5 Derivative
Works: “Derivative Works” as used
herein means any software program (whether in source code or object code), and
all copies thereof, developed by or on behalf of Licensee based on or derived
from any part of the Sitecore Software, including without limitation any
revision, modification, enhancement, translation (including compilation or
recapitulation by computer), abridgment, condensation, expansion, or any other
form in which the Sitecore Software may be recast, transformed or adapted, and
that, if prepared without Licensor's authorization, would constitute a patent,
copyright or trade secret infringement of the Sitecore Software, or would
otherwise constitute an unauthorized use of Licensor’s Confidential
information. In the event any such Derivative Works are created, Licensor shall
own all right, title, and interest in and to such Derivative Works. If, under
the operation of local law or otherwise, Licensee or such third party comes to
have any rights associated with such Derivative Works, Licensee hereby and
shall automatically assign all such rights to Licensor for no additional
consideration. For avoidance of doubt, Licensor shall claim no intellectual
property interest or legal interest of any kind in any code created by Licensee
to facilitate its authorized use of the Sitecore Software so long as the
creation of such code does not constitute a Derivative Work or violate any other
provision of this Agreement.
1.6
Third Party Use and Rights: Licensee
is prohibited from using the Sitecore Software as an Application Software
Provider, or in any time-sharing or other commercial arrangement of any kind
that makes the Sitecore Software available to third parties primarily for the
third party’s own uses. Except as expressly stated in this Agreement, no third
party has any rights under this Agreement. Licensee is fully liable to the
extent allowed by law for any unauthorized use of the Sitecore Software by
third parties caused by any acts or omissions of Licensee.
1.7
Transmission of Limited Licensee Data:
The Sitecore Software periodically transmits the following information to a
server maintained by Licensor: License Key ID, licensee name, hostname
(Licensee’s website URL), host IP, and directory installation path. This
information is used by Licensor to send periodic communications to Licensee
relevant to use of the Sitecore Software, and to verify that the Sitecore
Software is being used in authorized locations only. Licensee expressly
consents to the transmission of such information.
2. Virus/Malicious Code Warranty: Licensor and Licensee warrant that they will use
commercially reasonable virus and malicious code detection software programs to
test any electronic files, including electronic communications, prior to any
delivery or upon receiving such communications and that the parties will
continue to take such steps with respect to exchanging electronic files and
communications pursuant to this Agreement. In the event either party detects
any computer virus or malicious code it shall immediately notify the other
party and where possible shall promptly provide revised replacement files in
the event any such computer virus or malicious code is detected.
3. DISCLAIMER OF WARRANTIES: EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 2 ABOVE, THE SITECORE SOFTWARE AND THE
ASSOCIATED DOCUMENTATION ARE SUPPLIED TO LICENSEE "AS IS.” LICENSOR
(DEFINED IN THIS SECTION AS LICENSOR’S PARENT, AFFILIATES, SUBSIDIARIES,
DISTRIBUTORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES) MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO THE SITECORE SOFTWARE, THE ASSOCIATED
DOCUMENTATION, THE OPERATION OF THE SITECORE SOFTWARE, OR ANY OTHER GOODS OR
SERVICES RENDERED BY LICENSOR TO LICENSEE, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, PERFORMANCE, ACCURACY, NON-INFRINGEMENT,
FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING OR USAGE OF TRADE. LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS,
IMPLIED OR STATUTORY WARRANTIES THAT THE SITECORE SOFTWARE WILL RUN PROPERLY ON
ANY HARDWARE, THAT THE SITECORE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR
OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY LICENSEE, OR THAT
THE OPERATION OF THE SITECORE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR
THAT ALL ERRORS WILL BE CORRECTED. LICENSOR MAKES NO EXPRESS OR IMPLIED
WARRANTY OF ANY KIND REGARDING ANY SEPARATELY LICENSED SOFTWARE THAT MAY BE
USED WITH THE SITECORE SOFTWARE.
4. LIMITATION OF LIABILITY: LICENSOR (DEFINED
IN THIS SECTION AS LICENSOR’S PARENT, AFFILIATES, SUBSIDIARIES, DISTRIBUTORS
AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES) SHALL NOT BE LIABLE TO
LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT, UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO, LOST PROFITS,
LOST DATA OR BUSINESS INTERRUPTION, THE COST OF RECOVERING ANY DATA,
INFRINGEMENT, OR THE COST OF SUBSTITUTE SOFTWARE, EVEN IF LICENSOR HAS BEEN
ADVISED OF, KNOWS OF, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES.
LICENSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT
OF FEES PAID BY LICENSEE FOR USE OF THE SITECORE SOFTWARE UNDER THIS AGREEMENT.
(IF NO FEES ARE PAID
UNDER THIS AGREEMENT, THE PARTIES AGREE THAT THE FAIR MARKET VALUE OF
LICENSEE’S USE OF THE SOFTWARE UNDER THIS AGREEMENT IS $100, AND THAT
LICENSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THAT
AMOUNT). LICENSOR WILL NOT BE
LIABLE FOR DELAYS OR FAILURES IN PERFORMANCE OF THE SUPPORT OR ANY OTHER SERVICES
CAUSED BY FORCES BEYOND ITS CONTROL OR ANY FORCE MAJEURE EVENT SUCH AS ACT OF
TERRORISM, LOSS OF POWER, ACT OF GOD, OR SIMILAR OCCURRENCE OR FOR DAMAGES CAUSED
BY LICENSEE’S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. THE
LIMITATION PROVISIONS OF THIS SECTION SHALL BE APPLICABLE TO ANY CLAIM FILED BY
LICENSEE ARISING OUT OF OR RELATING TO ANY SEPARATELY LICENSED SOFTWARE THAT
MAY BE USED WITH THE SITECORE SOFTWARE.
5. Sitecore Maintenance Program: The
Sitecore Maintenance Program is not available for the Sitecore Software
licensed by this Agreement.
6 Waivers: All waivers must be in writing and signed by authorized
representatives of the parties. Any waiver or failure to enforce any provision
of this Agreement on one occasion shall not be deemed a waiver of any other
provision or of such provision on any other occasion.
7. Severability: If any provision of this Agreement is adjudicated to
be unenforceable, such provision shall be deemed changed and interpreted to
accomplish the objectives of such provision to the greatest extent possible
under applicable law and the remaining provisions shall continue in full force
and effect.
8. Assignment. Licensee may not assign this Agreement. Licensor may
assign this Agreement to a successor (whether by merger, a sale of all or a
significant portion of its assets, a sale of a controlling interest of its
capital stock, or otherwise) which agrees in writing to assume Licensor’s
obligations under this Agreement.
9. Entire Agreement: This Agreement, and any attachment that expressly
incorporates this Agreement, constitutes the entire agreement between the
parties regarding the subject matter hereof and supersedes all prior or
contemporaneous agreements, understandings and communications, whether written
or oral. This Agreement may be amended only by a written document signed by
both parties. In the event of a conflict between any provision of this
Agreement with any other attachment or document, this Agreement shall control.
Sitecore Limited License Agreement. May 5, 2011