IMPORTANT - READ CAREFULLY BEFORE INSTALLING SOFTWARE
YOU MAY USE THE ENCLOSED SOFTWARE ONLY IN ACCORDANCE WITH THIS LICENSE AGREEMENT ("AGREEMENT") (UNLESS A SIGNED LICENSE AGREEMENT WITH DEMANDWARE, INC., A SALESFORCE COMPANY, ("DEMANDWARE") EXPRESSLY SUPERSEDES THE TERMS OF THIS AGREEMENT). THIS IS A LICENSE AND NOT A SALE. USE OF THIS SOFTWARE IS EXPRESSLY CONDITIONED ON YOUR AGREEMENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON THE "YES" BUTTON DURING INSTALLATION OF THE SOFTWARE. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT INSTALL THE SOFTWARE. BY CLICKING "YES" YOU WARRANT THAT YOU ARE DULY AUTHORIZED TO LEGALLY BIND YOUR EMPLOYER TO THE TERMS OF THIS AGREEMENT.
For purposes of this Agreement, the following definitions shall apply: "Customer" means the entity that is licensed to use the Software and is party to a Demandware Master Subscription Agreement (the "Subscription Agreement") or Demandware Evaluation Subscription Agreement ("Evaluation Agreement"); "Developer" means an employee, consultant and/or implementation partner of Customer; "Development" means use of the Software by Developers solely to the extent necessary to customize the "Service" provided under the Subscription Agreement or Evaluation Agreement, as applicable; "Documentation" means the printed materials and "online" or electronic materials prepared by Demandware and delivered to Customer by Demandware (or an authorized distributor) for use with the Software, such as reference, user, installation, systems administrator and technical guides; "Software" means the Demandware Studio software and Documentation obtained by Customer via download from the Demandware website, and any patch, update, upgrade, modification or other enhancement to such Software or Documentation delivered by Demandware (or an authorized distributor); "You" means your employer and you.
Subject to the terms and conditions of this Agreement, Demandware grants Customer a limited, non-exclusive, non-transferable (except as otherwise expressly stated in this Agreement), royalty-free, fully paid up, right and license to use the Software solely for Development purposes and to make a reasonable number of copies of the Software provided such copies are used solely for such Development purposes and as backup, and are not published or distributed to any third party. All rights not specifically granted in this Agreement are retained by Demandware and its licensors.
(a) Customer may not modify, enhance, reverse engineer, alter, decompile, disassemble, supplement, create derivative work from, adapt, translate or otherwise reduce the Software to human readable form, except as specifically permitted in the Documentation or expressly permitted by applicable law notwithstanding this limitation.
(b) Customer may not host, rent, lease or lend the Software nor allow use of the Software for service bureau, timesharing or any other form of shared use; (c) except as otherwise expressly permitted in this Agreement, Customer may not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Software or its Documentation by any means or in any form to any third party (including, without limitation, any form of distributor or reseller), without a signed agreement granting such right(s).
(d) The Software may not be transferred, sold, assigned or otherwise conveyed (whether by operation of law or otherwise) to another party or outside the country in which it was originally delivered to Customer without Demandware's prior written consent and subject to Customer compliance with all applicable export and re-export regulations and restrictions; provided, however, that if expressly permitted by applicable law, Customer may transfer Customer's copy of the Software together with its Documentation on a permanent basis (without retaining rights thereto), so long as Customer notifies Demandware in advance as to the name and address of the recipient of such Software and Documentation, and such recipient agrees in writing to the terms and conditions of this Agreement.
(e) The Software contains software programs written in Java. The Software is not designed, manufactured or intended for use or resale in the design, construction, operation or maintenance of any nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems or any other system, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). All implied and express warranties with respect to High Risk Activities are hereby specifically disclaimed. Customer acknowledges that Customer is not licensed to use the Software for High Risk Activities and Customer warrants that it shall not do so.
(f) If the Software or its Documentation is acquired by or on behalf of the U. S. Government, the U.S. Government agrees that such Software and Documentation is "commercial computer software" or "commercial computer software documentation" and that use, modification, duplication and disclosure of the Software and its Documentation by the U.S. Government is subject to restrictions set forth in this Agreement or in a written agreement with Demandware specifying the Government's right to use the Software and its Documentation without such restrictions; and
(g) All Software and technical data delivered under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you.
Copyright (c) 2020 salesforce.com, inc. All rights reserved. Title to the Software and its Documentation, and patents, copyrights and all other property rights applicable thereto, shall at all times remain solely and exclusively with Demandware, Inc. and/or its affiliates and licensors, and Customer shall not take any action inconsistent with such title. The Software is protected by copyright laws and international treaty provisions. Customer shall not remove any copyright notices or other proprietary notices from the Software or its Documentation, and Customer must reproduce such notices on all copies or extracts of the Software or its Documentation. Customer does not acquire any rights of ownership in the Software.
TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED TO CUSTOMER "AS IS" WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DEMANDWARE AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SOFTWARE, ITS DOCUMENTATION, SUPPORT OR OTHER SERVICES RELATED TO THE SOFTWARE (INCLUDING THE PROVISION OF OR FAILURE TO PROVIDE ANY SUCH SERVICES). NO WARRANTY IS MADE REGARDING THE RESULTS OF SOFTWARE OR RELATED SERVICES OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE'S FUNCTIONALITY WILL MEET CUSTOMER REQUIREMENTS. Some jurisdictions do not allow the exclusion of implied conditions or warranties, statutory or otherwise, so the above exclusions may not apply to Customer.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL DEMANDWARE, ITS AFFILIATES OR ANY OF ITS LICENSORS BE LIABLE (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) FOR ANY LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER DEMANDWARE NOR ANY OF ITS SUBSIDIARIES' TOTAL LIABILITY, IF ANY, ARISING OUT OF THIS AGREEMENT OR CUSTOMER USE OF THE SOFTWARE (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) SHALL EXCEED THE FEES (IF ANY) PAID BY CUSTOMER EXPRESSLY FOR THIS AGREEMENT OR FIFTY DOLLARS ($50.00) WHICHEVER IS GREATER. CUSTOMER ACKNOWLEDGES THAT DEMANDWARE HAS LICENSED THE SOFTWARE IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF CUSTOMER'S RIGHTS AND REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. Some jurisdictions do not allow the exclusion or limitation of indirect, special, incidental, consequential or exemplary damages or the limitation of liability to specified amounts, so the above limitations or exclusions may not apply to Customer.
Term. This Agreement becomes effective on the date Customer legally obtains the Software and will automatically terminate upon the earlier of: (i) termination of the Demandware Agreement, or (ii) Customer's breach of any of its terms. Upon termination of this Agreement, Customer must destroy the original and all copies of the Software or return them to Demandware and delete the Software from Customer's systems. Sections 2, 5, 6, and 7 shall survive termination of this Agreement.
Law and Jurisdiction. This Agreement is governed by the laws of The Commonwealth of Massachusetts, U.S.A. Any action at law relating to this Agreement may only be brought before Massachusetts courts of competent. If, however, Customer's country of principal residence is a member state of the European Union or the European Free Trade Association, this Agreement is governed by the laws of that country, and any action at law may only be brought before a court of competent jurisdiction of that country.
Entire Agreement. This Agreement sets forth the entire understanding and agreement between Customer and Demandware and may be amended only in a writing signed by both parties. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, RESELLER, SALES PERSON, OR EMPLOYEE IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY REPRESENTATION OR PROMISE THAT IS DIFFERENT FROM, OR IN ADDITION TO, THE TERMS OF THIS AGREEMENT.
Waiver. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of the party to be bound. No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.
Severability. If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.
Independent Parties. Nothing in this Agreement shall be construed as creating a partnership or joint venture between the parties.
The Software contains third party software products provided pursuant and subject to each such third party's license agreement, including the Apache License Version 2.0, IBM Public License Version 1.0, Common Public License 1.0, and Eclipse Public License 1.0. Java and all Java-based trademarks are trademarks of Oracle Corporation in the United States, other countries, or both. Any provisions in this Agreement that differ with provisions in any of the foregoing third party licenses are offered by Demandware and not the third party licensors.
September 2016