WE DO NOT OFFER THE SOFTWARE WHICH IS THE SUBJECT OF THIS AGREEMENT ON ANY OTHER TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE.
YOUR ATTENTION IS DRAWN TO CLAUSE 8, WHICH CONTAINS LIMITATIONS ON AND EXCLUSIONS OF OUR LIABILITY.
This end user licence agreement (this Agreement) sets out the terms of the legal agreement between you and Gene Commerce Limited, a company registered in England with registered number 8589522 (we or us), in respect of the software product which it accompanies, or which you accept the terms of this Agreement in the course of downloading (the Software).
Our principle place of business is 39 - 42 East Street, Brighton, East Sussex, BN1 1HL, UK. Our VAT registration number is 174 6942 73. You can contact us by email at firstname.lastname@example.org.
1. Our assumptions about you
1.1. You acknowledge that this Agreement is entered into remotely, and we have no opportunity to conduct any pre-contract diligence on you. Therefore, you agree that we may make the following assumptions about you, and proceed as if those assumptions are true:
1.1.1. we assume that you are not a consumer, because we do not provide any products or services suitable for consumers; and
1.1.2. if you are a company or other legal entity, we assume that the natural person who indicates his or her acceptance of this Agreement on your behalf has all the required powers, authorities and consents to bind you to this Agreement.
2. Grant of licence
2.1. Subject to your compliance with the terms of this Agreement and payment of the applicable licence fee, we grant to you a perpetual, revocable, non-exclusive, royalty-free, worldwide, non sub-licensable, non-transferable licence to do only the following:
2.1.1. install, store, load, execute and operate (together, Use) the latest version of the Software as of the date on which you pay the licence fee (the Licensed Version):
(a) with a single Magento platform instance corresponding to the version and edition of the Magento platform for which you have paid the applicable licence fee;
(b) servicing a single DNS domain name (which you may change from time to time, so long as no more than one DNS domain name is serviced concurrently); and
(c) only for your own business purposes,
(the restrictions in this clause 2.1.1, together, being the Licence Scope);
2.1.2. subject to clause 6, modify or cause to be modified the Software to customise it to your own business or technical needs; and
2.1.3. make a reasonable number of copies of the Software for the purposes of internal testing, business continuity and/or disaster recovery only, and only in support of Use within the Licence Scope.
2.2. Save for the express grant of licence in clause 2.1, you will not have any right to load, execute, store, copy, distribute, modify, create derivative works from, sublicense or otherwise enjoy, derive benefit from or exploit the Software or any part of it, or permit any other person to do so, and all of our rights in the Software are fully reserved.
2.3. As a particular condition of the licence granted in clause 2.1, you will not (and you will not allow any other person to):
2.3.1. Use the Software other than within the Licence Scope;
2.3.2. distribute any part of the Software, and/or any modifications which you may make to it, to any third party;
2.3.3. remove or alter any copyright notice appearing in or with the Software, or fail to include any such notice in any copy which you may make of the Software or any part of it;
2.3.4. use the Software or its corresponding documentation and support materials to develop or market any software which competes with the Software, except to the extent explicitly allowed under applicable mandatory law without possibility of contractual waiver;
2.3.5. resell the Software, or make the Software available to any third party in the course of providing a service bureau or an outsourced or cloud service, or otherwise on a commercial or “for hire” basis; or
2.3.6. Use the Software in a manner or for a purpose which is unlawful in any territory with jurisdiction over you or us, or which breaches any regulatory guidance or industry code of practice applicable to you.
2.4. In support of the licence restrictions in this clause 2, you will implement and maintain reasonable security measures, in accordance with then-current industry best practice, for the purpose of preventing unauthorised access to the Software by third parties.
3. Relationship to Magento
3.1. Your use of the Software is governed by this Agreement, but your use of the web-based technology platform provided by Magento, Inc. (Magento) with which it interfaces will continue to be governed by the relevant agreement between you and Magento (your Magento EULA). You must not use the Software in a way that breaches your Magento EULA.
3.2. Magento is not party to this Agreement, and has no liability to you in respect of the Software or this Agreement, but, to the extent relevant to its rights under the Magento EULA or otherwise at law, it may enforce this Agreement against you as a third party beneficiary. You acknowledge and agree that such right of Magento is a condition of our participation in the Magento Connect marketplace and that it is not open to us to change it. No exercise of such rights by Magento will diminish or defeat our rights as against you under this Agreement.
4. Updates and Upgrades
4.1. During the Supported Lifetime of the Licensed Version, we will make available to you for download via our website such minor updates and patches addressing bugs or security vulnerabilities in the Licensed Version as we may make generally available to our customer base from time to time (Updates). For the purpose of this clause 4.1, the Supported Lifetime means, in respect of a version of the Software, that period following the release of that version during which we determine in our reasonable discretion that it is appropriate to continue to issue Updates.
4.2. Additionally, if during the first 12 months following the date on which you pay the licence fee, we release a new version of the Software which provides additional features, or improves its performance or operation (an Upgrade), you may download and Use that Upgrade in accordance with this Agreement, and that Upgrade will be deemed to be the Licensed Version for the purposes of this Agreement.
5.1. ou will pay the applicable licence fee, as well as any VAT chargeable on it, in advance and in accordance with the process specified on our website. The applicable licence fee will vary depending on the version and edition of the Magento platform that you wish to acquire a licence to Use the Software with.
6. Warranty and support
6.1. We warrant that, for 30 days from the date on which you pay the licence fee (the Warranty Period), the unmodified Software, when used with a version of the Magento platform which we have stated to be compatible with it, will perform substantially in accordance with the user documentation published on our website from time to time. Your sole and exclusive remedy for our breach of this warranty will be to receive the support described in clause 6.4 below.
6.2. We give no other warranty in relation to the Software, which is otherwise provided “as is”. All warranties and other terms implied by law or custom are hereby excluded to the fullest permissible extent. In particular, without limiting the generality of the foregoing, you acknowledge that the Software is an off-the-shelf product which has not been tailored to your particular needs, and that you are solely responsible for assessing its fitness for your intended purpose.
6.3. During the Warranty Period only, we will provide you with installation and configuration support for the unmodified Software by email during normal business hours in the United Kingdom, using reasonable efforts to resolve problems which you may encounter in installing, configuring and using the unmodified Software. We will not be obliged to provide support if you have modified the Software, and if we do provide it we do so at our discretion and may at any time require you to revert to the unmodified Software as a condition of continuing to receive support.
6.4. We may also from time to time make additional community support options available, such as a user forum or an online knowledge base. All such additional community support options are at our discretion and are provided “as is”, and we will have no liability for any loss, damage, cost or liability which you may suffer or incur as a result of use of or reliance on them.
6.5. You acknowledge that the limited warranty and support provided in this clause 6 is reflective of the amount of the applicable licence fee, and that offering greater levels of support or warranty protection would require us to charge a significantly higher licence fee to be economically viable. If you require a greater level of support or assistance, please contact us to discuss an appropriate professional services engagement or retainer.
7.1. You acknowledge that by default the Software will send to us, via the public Internet, the following basic information about your installation:
7.1.1. your domain name; and
7.1.2. the version of the Software you are using.
8.1. Nothing in this clause 8 will limit or exclude our liability for death or personal injury caused by our negligence, or for our fraud or fraudulent misrepresentation.
8.2. We will have no liability arising under or in connection with the Software or this Agreement for: any loss of profits or revenue; any account of our profits; any increased or accelerated costs or goodwill payments; any loss of anticipated savings; any loss of contract or opportunity; any loss of goodwill or reputation; any loss of management time; any loss, destruction, corruption or irretrievability of data; or any indirect or consequential loss.
8.3. Subject to clauses 8.1 and 8.2, our total aggregate liability to you arising under or in connection with this Agreement will be limited to a sum equal to the licence fee paid by you pursuant to clause 5.
9.1. We may terminate this Agreement (and the licence granted by it) immediately by written notice to you (including by email) if you commit any material breach of this Agreement. Any breach by you of clauses 2 or 3 will be deemed to be a material breach for the purposes of this clause 9.1.
10.1. You may not assign, subcontract or otherwise deal in any of your rights or obligations under this Agreement without our prior written consent, which we will not unreasonably withhold. We may assign our rights or subcontract our obligations under this Agreement.
10.2 This Agreement contains the whole agreement between you and us, and supersedes all prior agreements, arrangements and understandings between you and us, relating to its subject matter. Each of you and us acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) (each, a Representation) other than as expressly set out in this agreement. Nothing in this clause 10.2 will limit or exclude any liability for any fraudulent Representation.
10.3 Except to the extent that this Agreement expressly provides otherwise, a person who is not a party to this Agreement will have no right to enforce any term of it.
10.4 If any provision of this Agreement is held to be invalid or unenforceable for any reason, that provision will, if possible, be adjusted rather than voided, in order to achieve a result which corresponds to the fullest possible extent to the intention of the parties. The nullity or adjustment of any provision of this Agreement will not affect the validity and enforceability of any other provision of this Agreement.
10.5 The failure of a party to enforce a provision of this Agreement or any rights with respect thereto (or any delay in so doing) will not be a waiver of that provision or right, or in any way affect the validity of this Agreement. A waiver of any claim for a breach of this Agreement will not operate to waive any claims in respect of any other breach.
10.6 This Agreement and all non-contractual obligations arising out of or in connection with it are governed by English law and subject to the exclusive jurisdiction of the English courts.