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RESTHeart COMMERCIAL LICENSE AGREEMENT
VERSION 2018-21-11
IMPORTANT: THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT ("Agreement") BETWEEN YOU (THE CUSTOMER, EITHER AS AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AS AN ENTITY) AND SOFTINSTIGATE SRL.
READ IT CAREFULLY BEFORE COMPLETING THE LICENSE KEY ACTIVATION PROCESS AND USING RESTHeart AND RELATED SOFTWARE COMPONENTS ("SOFTWARE"). IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.
Between
SoftInstigate Srl, VAT 01664640669, with registered office in L'Aquila, Via G. D'Annunzio 28, later also known as the "Licensor",
and
You, as the natural or legal person who uses RESTHeart and who is granted this license for commercial use, later also known as the "Licensee",
all jointly defined, if necessary, as the "Parties";
1. PREAMBLE
This preamble is part of this Agreement.
1.0. In order to use the Software under the Terms and Conditions of this Agreement, you must purchase, receive and activate a "License Key", in accordance with the scope of use and other terms and as set forth in this Agreement. Without a valid and activated License Key, the Terms and Condition of the free software license published at https://github.com/SoftInstigate/restheart/blob/master/LICENSE.txt are in force.
1.1. SoftInstigate Srl carries out software production activities and recognizes itself as the owner of the Intellectual Work "RESTHeart", of which holds all the rights of economic exploitation, hereafter simply called RESTHeart, subject of the present commercial license;
1.2. RESTHeart is dual licensed, i.e. distributed according to two licenses: the free software license published at https://github.com/SoftInstigate/restheart/blob/master/LICENSE.txt hereafter referred to as Free License, and this commercial license that grants to the Licensee of additional permits to use RESTHeart with respect to the Free License as detailed art. 4 and art.5;
1.3. The Licensee has been able to ascertain the functionality and usefulness of RESTHeart and has assessed it as suitable for its needs and is therefore interested in obtaining, for the payment of a fee, a license for the use of RESTHeart, hereinafter, for brevity, also referred to as the "License" or "Agreement";
1.4. Licensee intends to use as many RESTHeart Instances as allowed by the purchased License Keys.
1.5. RESTHeart has been chosen and considered suitable by the Licensee according to its needs.
1.6. The Licensee is aware that the hardware resources used for RESTHeart shall be adapted according to its use and that all the requirements indicated in the Documentation must be met.
1.7. Definitions. In this Licence, the following terms have the following meaning:
a. RESTHeart instance: any installation of RESTHeart and Derivative Works of RESTHeart capable of being executed as a single process in a production execution environment regardless the used technology, including but not limited to bare metal servers, virtual machines or containers. Installations made for testing or development purposes don’t constitute RESTHeart instances.
b. License Key: a verifiable file, cryptographically signed by the Licensor, containing additional information on the License (including but not limited to those that specifies how many RESTHeart instances the Licensee is allowed to execute and how) that can purchased by the Licensee in order to acquire the rights to use RESTHeart under the Terms and Conditions defined in this License and in the information contained in the License Key itself.
c. License Key Activation: the technical process described in the Documentation accompanying the License Keys by which the Licensee accepts the Terms and Conditions of this License according to article 3 and binds the License Key to the allowed RESTHeart Instances.
d. Subscription period: the period during which the Licensee holds the right for Updates and Bug Fixing. It lasts for one year starting from the the date of acceptance of this License and it can be extended on year by year basis as detailed in art. 8.
e. Derivative Work: the work or software that could be created by the Licensee, based upon the RESTHeart or modifications thereof, including but not limited to any modification of RESTHeart and any software that links or embeds RESTHeart. A Software that interacts with RESTHeart via its REST API is not considered as a Derivative Work.
2. SUBJECT
2.1. For the payment of the fee established in art. 8 and under the terms and conditions below, the Licensor:
a. grants the Licensee a license to use the latest release of RESTHeart available "as it is" at the time of acceptance of this License at https://restheart.org;
b. during the Subscription period, provides to the Licensee the Updates and Bug Fixing as described in more detail in art. 5.
2.2. The Licensor grants the Licensee a non-exclusive, non-assignable, non-transferable, non-sublicensable license to use RESTHeart without any of the limitations set forth in the Free License described in more detail in art. 4.
2.3. The License grants the Licensee the right to install and use as many RESTHeart instances as specified by the purchased License Keys.
2.4. The License grants the Licensee the right to modify RESTHeart or part of it in accordance with the provisions of art. 4, also through authorized third parties.
3. ACCEPTANCE OF THE LICENSE
The provisions of this Licence are accepted during the License Key Activation process by first checking the two checkboxes "I Accept the Agreement" and "I explicitly accept..." and then clicking on the button "Activate the License Key" placed under the bottom of a window displaying the text of this Licence or by affirming consent in any other similar way, in accordance with the rules of applicable law. Clicking on that button indicates your clear and irrevocable acceptance of this Licence and all of its terms and conditions.
4. USE OF RESTHeart
4.1. The Licensee holds the right to install and use as many RESTHeart instances (including Derivative Works) as defined in the purchased License Keys, under the conditions established by the Free License with express exemption from the following conditions:
a. the obligation to distribute any Derivative Work with the same Free License;
b. the obligation to provide to third parties a copy of the Source Code of any Derivative Work in case of distribution;
c. the obligation to provide to users who interact on the network a copy of the Source Code of any Derivative Work.
4.2. The terms and conditions established in the Free License that are compatible with the additional permits indicated in the previous paragraph remain in force.
5. UPDATES AND BUG FIXING SERVICES
5.1. During the Subscription Period:
a. Updates Service: the Licensor will provide the Licensee any updates of RESTHeart. Therefore the Licensee holds the right to use, under the Terms and Conditions of this Agreement, the latest release of RESTHeart available at the time of acceptance of this License and any further version released during the Subscription Period;
b. Bug Fixing Service: the Licensor will fix any reproducible bug identified and documented by the Licensee and affecting the latest official release.
5.2. After the termination of the Subscription Period the Licensor will not have the right:
a. to use, under the Terms and Condition of this License, new versions of RESTHeart;
b. request priority bug fixing.
6. INTELLECTUAL PROPERTY OF RESTHEART
6.1. Except for the limited license rights expressly provided herein, SoftInstigate Srl has and will retain the exclusive property of RESTHeart and all rights, title and interest (including, without limitation, all patent, copyright, trademark, logo, trade secret and other intellectual property rights) in and to RESTHeart and all documentation, copies, modifications and derivative works thereof (including any changes which incorporate any of the Licensee ideas, feedback or suggestions).
6.2. The Licensee acknowledges that it is obtaining only a limited license right to RESTHeart, and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
7. DURATION AND TERMINATION
This Agreement shall remain in effect between the Parties for ten (10) years starting from the date of acceptance of the same, without prejudice to the right of termination of the Licensee by means of written communication with no obligation to advance notification.
The exercise of the right of withdrawal will have no effect on the Licensee's obligation to pay the fee as established in art. 8 and, in general, on any services already performed or in progress.
8. FEES AND PAYMENTS
8.1. The fee for the Commercial License that includes a Subscription of one year and the fee for extending the Subscription are defined on the website https://restheart.org at time of purchase.
8.2. The Parties can also agree on fees different than the ones indicated in art. 8.1 through a commercial negotiation. In this case the fees are defined in the Commercial Offer of the Licensor and accepted by the Licensee by signing it or by issuing a Purchase Order or similar document.
8.3. The license fees will be due and payable in full as set forth in the applicable invoice or at the time of purchase.
8.4. The payment of the invoices must be made by direct remittance;
8.5. The fees defined therein are meant excluding VAT;
8.6. The Licensee shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of SoftInstigate Srl);
8.7. The fees defined on the website https://restheart.org can be modified by the Licensor at any time.
9. DISCLAIMER OF WARRANTY
9.1. The "Disclaimer of Warranty" set forth in the Free License under which RESTHeart is traditionally distributed, which for greater clarity follows, is in force: "THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION."
9.2. The Licensee acknowledges the fact that RESTHeart is traditionally distributed as Free Software and as such subject by definition to possible and continuous modifications.
9.3. The Licensor only guarantees that RESTHeart complies with the technical and functional characteristics described in the relevant Documentation and any verification in relation to its performance will be carried out using only these specifications.
9.4. The Licensee acknowledges that the proper functioning of RESTHeart and therefore its performance is subject to the correct functioning and proper use of the hardware infrastructure, the system software and the network resources of the Licensee and the correct use of RESTHeart.
9.5. The Licensee accepts and acknowledges that no software product is error-free and acknowledges that it has been specifically informed of the need to periodically make backup copies of the data and configurations generally necessary and/or otherwise useful for the functioning of RESTHeart Instances.
9.6. The Licensor do not assume or provide any warranty as to the quality, capacities, operations, performance and suitability of third party software and third party machines with which RESTHeart operates that are of the sole competence and responsibility of the Licensee, of the reseller or supplier of such softwares, services or machineries.
10. LIMITATION OF LIABILITY
10.1. The Licensor is not liable for damages, direct or indirect (including damages due to business interruption, loss of profit and the like resulting from RESTHeart defects not considered in itself, but to the use of the malfunctioning program within the company organization) in any case suffered by the Licensee or by third parties due to the use or non-use of RESTHeart, without prejudice to what is required by law.
10.2. In no event will SoftInstigate Srl' liability exceed the License price as indicated in the invoice. The existence of more than one claim will not enlarge or extend this limit.
10.3. The Licensee exclusive remedy and Licensor’ entire liability for breach of this Agreement shall be limited, at Licensor’ sole and exclusive discretion, to (a) replacement of any defective software or documentation; or (b) refund of the license fee paid to the Licensor, payable in accordance with art. 10.2.
10.4. The Licensee undertakes to use RESTHeart within the terms agreed in the art. 4, and also endeavor to ensure compliance of the terms and conditions of this Agreement by its employees and/or consultants and/or agents and/or any third party using the licensed RESTHeart Instances.
10.5. The Licensee shall be directly responsible for the acts committed in violation of the terms and conditions of this Agreement, made by its employees and/or consultants and/or agents and/or any third party using the licensed RESTHeart Instances.
10.6. The Licensee agrees to defend, indemnify, and hold harmless SoftInstigate Srl from and against any lawsuits, claims, losses, damages, fines and expenses (including attorneys' fees and costs) arising out of your use of RESTHeart or breach of this Agreement.
11. CONTRACT RELEASE
The Licensee may not transfer this Agreement to third party without the express and written consent of SoftInstigate Srl.
12. EXPRESS TERMINATION CLAUSE
Without prejudice to any other right of the Licensor, any failure - even minor - by the Licensee of the obligations under Articles 2, 3, 4, 5, 6, 8, 9, 10, 11, of this Agreement will entail the immediate termination of the right, pursuant to art. 1456 c.c. (Italian Civil Code).
The Licensor may, in particular, make use of the express termination clause if the Licensee:
a. grant to third party, in any capacity and for any reason, the use of RESTHeart, according to the terms and conditions set forth in this License;
b. grant to third party, in any capacity and for any reason, the use of RESTHeart in any case in contravention of the permitted uses indicated in art. 4.
c. uses a License Key in more RESTHeart instances than allowed and in any case in contravention of the permitted uses indicated in the License Key itself.
d. transfers this Agreement to third party without the express and written consent of SoftInstigate Srl.
However, the right of the Licensor for compensation for any further damage remains.
13. OTHER LICENSES
The Licensee acknowledge that RESTHeart works in conjunction with other programs whose use is regulated by independent licenses published at:
http://softinstigate.github.io/restheart/dependencies.html.
14. PERSONAL DATA PROCESSING
14.1. Pursuant to and for the purposes of Italian Legislative Decree 196/03 and Reg. UE 679/2016, with the acceptance of this Agreement the Licensee gives its consent to the processing of personal data concerning it exclusively for the purposes connected to the execution of the present agreement and to the fulfilment of the legal, contractual, accounting, administrative and fiscal obligations deriving from it. In particular, the processing may take place using manual and computerized methods, observing appropriate security measures to guarantee the privacy and confidentiality of the data. The data will be processed for the entire duration of the established contractual relationship and also subsequently, for the fulfilment of legal obligations and for future commercial purposes.
14.2. The transfer of data is mandatory to establish the contractual relationship and perform legal obligations.
14.3. The data will be communicated to third party to whom communication is required by law and will not be disclosed.
14.4. The Licensee has the right to know their data, to have them supplemented, modified, cancelled for violation of the law and/or to object to their processing.
14.5. By accepting this Agreement the Parties mutually authorize each other to mention each other for promotional and marketing purposes.
15. LANGUAGE, APPLICABLE LAW AND JURISDICTION
15.1. This Agreement is drawn up in English for a better understanding of the terms and conditions contained.
15.2. This Agreement is governed by the Italian State Law, including as regards patent and copyright.
15.3. The Parties agree that for any dispute that may arise between them regarding the interpretation and/or execution of the Agreement, the Court of Milan, in Italy will have exclusive jurisdiction.
16. FINAL CLAUSES
16.1. This Agreement replaces any previous agreement, even verbal, between the Parties and constitutes the only one existing in relation to the matters dealt with in it.
16.2. SoftInstigate Srl reserves the right, in its sole discretion, to amend this Agreement from time.
16.3. SoftInstigate Srl reserves the right, in its sole discretion, to modify the free software license with which RESTHeart is traditionally distributed.
16.4. The possible tolerance of one party to the breach of the other cannot in any way be considered as a waiver of the rights deriving from this agreement.
16.5. For anything not provided in this Agreement, the Parties refer to the provisions of the law, with particular reference to the Italian Civil Code and also to the Italian Law 633/1941, as subsequently integrated and amended.
16.6. The headings of sections and paragraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs.
16.7. The Licensor or a certified auditor acting on its behalf, may, upon its reasonable request and at its expense, audit the Licensee with respect to the use of the Software. Such audit may be conducted by mail, electronic means or through an in-person visit to the Licensee’ place of business. Any such in-person audit shall be conducted during regular business hours and shall not unreasonably interfere with business activities. The Licensor shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that the Licensee is using the Software in a way that is in material violation of the terms of this Agreement, then the Licensee shall pay the Licensee a reasonable costs of conducting the audit. In the case of a material violation, the Licensee agrees to pay the Licensor any amounts owing that are attributable to the unauthorized use. In the alternative, the Licensor reserves the right, at its sole option, to terminate the licenses for the Software.
In any case, pursuant to and for the purposes of art. 1341 and 1342 c.c. (Italian Civil Code) the parties declare to approve specifically, after reading, the following clauses: art. 3 (ACCEPTANCE OF THE LICENSE), art. 4 (USE OF RESTHEART), art. 5 (UPDATES AND BUG FIXING SERVICES), art. 6 (INTELLECTUAL PROPERTY OF RESTHEART), art. 7 (DURATION AND TERMINATION), art. 8 (FEES AND PAYMENTS), art. 9 (DISCLAIMER OF WARRANTY), art. 10 (LIMITATION OF LIABILITY), art. 11 (CONTRACT RELEASE), art. 12 (EXPRESS TERMINATION CLAUSE), art. 14 (PERSONAL DATA PROCESSING), art. 15 (LANGUAGE, APPLICABLE LAW AND JURISDICTION), art. 16 (FINAL CLAUSES).
If you have any questions about this Agreement, or if you want to contact SoftInstigate Srl for any reason, please direct correspondence to info@softinstigate.com.