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TRAILBLAZER LICENSE AGREEMENT
VERSION 1.1
IMPORTANT: THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN LICENSEE (“LICENSEE”) AND TRAILBLAZER GMBH. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING TRAILBLAZER GEMS (AT GITHUB.COM/TRAILBLAZER), TRAILBLAZER PRO AND RELATED TRAILBLAZER PRO COMPONENTS (SOURCE URL WILL BE PROVIDED AFTER PURCHASE) (“SOFTWARE”). IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. IN CONSIDERATION OF LICENSEE’S INSTALLATION AND USE OF THE SOFTWARE, LICENSEE HEREBY CONFIRMS THE ACCEPTANCE OF THE SOFTWARE AND AGREES TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.
In order to use the Software under this Agreement (“Commercial Version”), Licensee must receive a source URL at the time of purchase, in accordance with the scope of use and other terms specified for each type of Software and as set forth in this Section 1 of this Agreement.
1. License Grant.
1.1 General Use. This Agreement grants Licensee a worldwide, non-exclusive, non-transferable license, valid for the license term, to use the Software, without the right to grant sublicenses, subject to the terms and conditions in this Agreement. The Software is licensed, not sold.
1.2 Installations. Licensee may install the Software on an unlimited number of Hosts per project. “Host” means any physical or virtual machine which is controlled by Licensee. A project may involve multiple repositories.
1.3 Applications. Licensee may distribute the Software in any applications, frameworks, or elements (collectively referred to as an “Application” or “Applications”) that Licensee develops using the Software in accordance with this Agreement, provided that such distribution does not violate the restrictions set forth in section 3 of this Agreement. Licensee must not remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Software. Licensee is required to ensure that the Software is not reused by or with any applications other than those with which Licensee distribute it as permitted herein. For example, if Licensee installs the Software on a customer’s server, that customer is not permitted to use the Software independently of Licensee’s Application. Licensee must inform Trailblazer GmbH of any infringing use of the Software by any of Licensee’s customers. Licensee is liable for compliance by those third parties with the terms and conditions of this Agreement. Licensee shall not owe Trailblazer GmbH any royalties for Licensee’s distribution of the Software in accordance with this Agreement.
1.4 Archive Copies. Licensee is entitled to make a reasonable amount of copies of the Software for archival purposes. Each copy must reproduce all copyright and other proprietary rights notices on or in the Software.
1.5 Electronic Delivery. All Software and license documentation shall be delivered by electronic means unless otherwise specified on the applicable invoice (“Invoice”) or at the time of purchase. Software shall be deemed delivered when it is made available for download by Licensee (“Delivery”).
2. Modifications.
Trailblazer GmbH shall provide Licensee with source code so that Licensee can create Modifications of the Software. “Modification” means: (a) any addition to or deletion from the contents of a file included in the original Software or previous Modifications created by Licensee, or (b) any new file that contains any part of the original Software or previous Modifications. While Licensee retains all rights to any original work authored by Licensee as part of the Modifications, Trailblazer GmbH continues to own all copyright and other intellectual property rights in the Software.
3. Restricted Uses.
3.1 Licensee shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease or use the Software for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement; (c) redistribute the Software or Modifications other than by including the Software or a portion thereof within Licensee’s own product, which must have substantially different functionality than the Software or Modifications and must not allow any third party to use the Software or Modifications, or any portions thereof, for software development or application development purposes; (d) redistribute the Software as part of an "appliance" or "virtual server"; (e) redistribute the Software on any server which is not directly under Licensee’s control; (f) remove any product identification, proprietary, copyright or other notices contained in the Software; (g) modify any part of the Software, create a derivative work of any part of the Software (except as permitted in Section 2), or incorporate the Software, except to the extent expressly authorized in writing by Trailblazer GmbH; (h) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (i) utilize any equipment, device, software, or other means designed to circumvent or remove any form of Source URL or copy protection used by Trailblazer GmbH in connection with the Software, or use the Software together with any authorization code, Source URL, serial number, or other copy protection device not supplied by Trailblazer GmbH; (j) use the Software to develop a product which is competitive with any Trailblazer GmbH product offerings (unless such development is allowed by applicable law); or (k) use unauthorized Source URLS or keycode(s) or distribute or publish Source URLs or keycode(s), except as may be expressly permitted by Trailblazer GmbH in writing. If Licensee’s unique Source URL is ever published, Trailblazer GmbH reserves the right to terminate Licensee’s access without notice.
3.2 UNDER NO CIRCUMSTANCES MAY LICENSEE USE THE SOFTWARE AS PART OF A PRODUCT OR SERVICE THAT PROVIDES SIMILAR FUNCTIONALITY AS THE SOFTWARE ITSELF.
4. Ownership.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Trailblazer GmbH and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of Licensee’s ideas, feedback or suggestions). Licensee acknowledges that Licensee is obtaining only a limited license right to the Software, and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Licensee under this Agreement or otherwise.
5. Fees and Payment.
The Software license fees will be due and payable in full as set forth in the Invoice or at the time of purchase. Licensee shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Trailblazer GmbH).
6. Support, Maintenance and Services.
Subject to the terms and conditions of this Agreement, as set forth in the Invoice, and as set forth on the Trailblazer PRO support page (http://pro.trailblazer.to), support and maintenance services may be included with the purchase of Licensee’s license subscription.
7. Term of Agreement.
7.1 Term. This Agreement is effective as of the Delivery of the Software and expires at such time as all license and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). For clarification, the term of the license under this Agreement may be perpetual or designated as a fixed-term license in the Invoice and shall be specified at Licensee’s time of purchase. Either party may terminate this Agreement (including all related Invoices) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach, provided that Trailblazer GmbH may terminate this Agreement immediately upon any breach of Section 3 or if Licensee exceeds any other restrictions contained in Section 1, unless otherwise specified in this agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
7.2 Termination. Upon any termination of this Agreement, Licensee shall cease any and all use of any Software and destroy all copies thereof.
7.3 Expiration of License. Upon the expiration of any term under this Agreement, (a) all Software updates and services pursuant to the license shall cease, (b) Licensee may only continue to run existing installations of the Software, (c) Licensee may not install the Software on any additional Hosts, and (d) any new installation of the Software shall require the purchase of a new license subscription from Trailblazer GmbH.
8. Disclaimer of Warranties.
The Software is provided "as is", with all faults, defects and errors, and without warranty of any kind. Trailblazer GmbH does not warrant that the Software will be free of bugs, errors, viruses or other defects, and Trailblazer GmbH shall have no liability of any kind for the use of or inability to use the Software, the Software content or any associated service, and Licensee acknowledges that it is not technically practicable for Trailblazer GmbH to do so.
To the maximum extent permitted by applicable law, Trailblazer GmbH disclaims all warranties, express, implied, arising by law or otherwise, regarding the Software, the Software content and their respective performance or suitability for Licensee’s intended use, including without limitation any implied warranty of merchantability, fitness for a particular purpose.
9. Limitation of Liability.
To the maximum extent permitted by applicable law, Trailblazer GmbH will not be liable for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages or liabilities whatsoever arising from or relating to the Software, the Software content or this Agreement, whether based on contract, tort (including negligence), strict liability or other theory, even if Trailblazer GmbH has been advised of the possibility of such damages. In no event will Trailblazer GmbH's liability exceed the Software license price as indicated in the Invoice. The existence of more than one claim will not enlarge or extend this limit. Claims for damages under the Product Liability Act shall remain unaffected, as shall liability for damage to life, body or health.
10. Remedies.
Licensee’s exclusive remedy and Trailblazer GmbH’s entire liability for breach of this Agreement shall be limited, at Trailblazer GmbH’s sole and exclusive discretion, to (a) replacement of any defective software or documentation; or (b) refund of the license fee paid to Trailblazer GmbH.
11. Miscellaneous
11.1 Entire Agreement. This Agreement sets forth our entire agreement with respect to the Software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral.
11.2 No Assignment. Licensee may not assign this Agreement or any of its rights under this Agreement without the prior written consent of Trailblazer GmbH and any attempted assignment without such consent shall be void.
11.3 Export Compliance. Licensee agrees to comply with all applicable laws and regulations, including laws, regulations, orders or other restrictions on export, re-export or redistribution of software.
11.4 Indemnification. Licensee agrees to defend, indemnify, and hold harmless Trailblazer GmbH from and against any lawsuits, claims, losses, damages, fines and expenses (including attorneys' fees and costs) arising out of Licensee’s use of the Software or breach of this Agreement.
11.5 Governing Law. This Agreement is governed and construed in accordance with the law of The Federal Republic of Germany and shall be subject to the exclusive jurisdiction of the Courts of Berlin, Germany. The operation of the United Nations Convention on the International Sale of Goods is hereby expressly excluded.
11.6 Dispute Resolution. In the event of any dispute arising from or in connection with this Agreement, the parties undertake to make all their best efforts to settle the dispute amicably through negotiations, failing which either party may submit the dispute for resolution by the Courts of Berlin, Germany.
11.7 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement shall be entitled to recover its attorneys’ fees and costs in connection with such action.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement shall remain in full force and effect.
11.9 Waiver. Failure or neglect by either party to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a waiver of that party's rights under this Agreement.
11.10 Modifications. No modification of this Agreement shall be effective unless contained in writing and executed by an authorized representative of each party. No term or condition in Licensee’s Purchase Order or Terms and Conditions shall apply unless expressly accepted by Trailblazer GmbH.
11.11 Force Majeure. Trailblazer GmbH shall not be liable for any delay or non-performance of its obligations under this Agreement in the event and to the extent that such delay or non-performance is due to an unforeseeable catastrophic event that prevents Trailblazer GmbH to fulfill its obligations under this Agreement and which Trailblazer GmbH cannot avoid or circumvent (“Force Majeure Event”). If the Force Majeure Event results in a delay or non-performance of Trailblazer GmbH for a period of three (3) months or longer, then Licensee shall have the right to terminate this Agreement with immediate effect without any liability (except for the obligations of payment arising prior to the event of Force Majeure).
The Open Source version of the TRAILBLAZER GEMS (“LGPL Version”) is licensed under the terms of the GNU Lesser General Public License versions 3.0 (“LGPL”) and not under this Agreement.
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