License Agreement for dotTrace
(Floating commercial license)
IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR COMPUTER, OR OTHERWISE USING THIS SOFTWARE, YOU (LICENSEE, AS DEFINED BELOW) ARE BECOMING A PARTY TO THIS AGREEMENT AND YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD, INSTALL AND USE THE SOFTWARE.
(a) "Licensor" means JetBrains s.r.o., having its principal place of business at Na hřebenech II 1718/10, Prague, 14700, Czech Republic, registered with Commercial Register kept by the Municipal Court of Prague, Section C, file 86211, ID.Nr.: 265 02 275.
(b) "Licensee" means the legal entity specified in the License Certificate, exercising rights under, and complying with all of the terms of, this Agreement. "Licensee" includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, "control" means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.
(a) "Authorized User" means any employee, independent contractor or other temporary worker authorized by Licensee to use Software while performing duties within the scope of their employment or assignment.
(b) "Client" means a computer device used by Authorized User for running Software.
(c) "Floating License Key" means a unique key-code that enables Licensee to use Software by a single Authorized User at a time. Only Licensor and/or its representatives are permitted to produce License Keys for Software.
(d) "License Certificate" means evidence of a license provided by Licensor to Licensee in electronic or printed form.
(e) "License Server" means a server application designed to store Floating License Keys and to enable access to Software from Clients within Licensee's local area network. License Server is supplied by Licensor to Licensee as part of Floating License Key purchase.
(f) "Server Computer" means a central computer device dedicated by Licensee to run License Server.
(g) "Software" means the software program known as dotTrace Memory or dotTrace Performance in binary form, including its documentation, upgrades provided pursuant to Section 9 of this Agreement, and any third party software programs that are owned and licensed pursuant to Section 6 of this Agreement by parties other than Licensor and that are either integrated with or made part of dotTrace (collectively, "Third Party Software").
(a) Software is the property of Licensor or its suppliers. Software is licensed, not sold. Title and copyrights to Software, in whole and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of Software regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of Licensor and its suppliers.
(b) Software is protected by United States Copyright Law and International Treaty provisions. Further, the structure, organization, and code embodied in Software are the valuable and confidential trade secrets of Licensor and its suppliers and are protected by intellectual property laws and treaties. Licensee agrees to abide by the copyright law and all other applicable laws of the United States including, but not limited to, export control laws.
4. GRANT OF LICENSE
Subject to the terms, conditions, and limitations set forth in this Agreement, including any amendments thereto, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable license to use the Software as follows:
(a) Licensee may:
(i) install and use the licensed edition (if applicable) and version of Software specified in License Certificate on any number of Clients and on any operating system supported by Software;
(ii) install and run a single instance of License Server on a single Server Computer. Licensee may install multiple instances of License Server, provided that Licensee complies with restrictions set forth in Paragraphs 4 (b) (iii) and 4 (b) (v) herein;
(iii) access the Software from Clients via License Server and run Software concurrently by the number of Authorized Users corresponding with the total number of purchased Floating License Keys; and
(iv) make one backup copy of Software for archival purposes.
(b) Licensee may not:
(i) sell, redistribute encumber, give, lend, rent, lease, sublicense, or otherwise transfer Software, or any portions of Software (except as set forth in Paragraph 4 (a) (iii)), to anyone without the prior written consent of Licensor;
(ii) reverse-engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of Software, or create derivative works from Software;
(iii) run the same Floating License Key on multiple instances of License Server;
(iv) install and use Floating License Key on Clients; or
(v) run Software by a number of Authorized Users exceeding the number of purchased Floating License Keys.
5. REDISTRIBUTABLE FILES (Section applicable to dotTrace Performance only)
(a) In addition to the license granted under Section 4 of this Agreement, Licensor grants to Licensee a non-exclusive, limited, royalty-free license to reproduce and distribute certain files stored in dotTrace Performance directories SDK\Lib and/or SDK\Redist ("Redistributable Files"), provided that:
(i) Licensee will distribute Redistributable Files as complete, unmodified and only as part of software applications created by Licensee; and
(ii) Licensee will not derive the source code of Redistributable Files provided by Licensor in executable (binary) form only, or reproduce, modify, use, or distribute the source code of such files.
(b) REDISTRIBUTABLE FILES ARE PROVIDED BY LICENSOR "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. THIRD PARTY SOFTWARE LICENSE
(a) Licensee agrees to comply with the terms and conditions contained in Third-Party Software licenses available at https://confluence.jetbrains.net/display/NetProf/Third-Party+Software+Shipped+With+dotTrace+Performance with respect to the applicable Third-Party Software.
(b) Licensee agrees and acknowledges that Sections 10 and 11 of this Agreement shall also govern Licensee's use of the Third-Party Software. Licensor will bear no responsibility with respect to any Third Party Software, and Licensee will look solely to the licensor(s) of the Third Party Software for any remedy. Licensor claims no right in the Third Party Software, and the same is owned exclusively by the licensor(s) of the Third Party Software.
(c) LICENSOR PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO ANY THIRD PARTY SOFTWARE.
7. RESTRICTED USE DURING EVALUATION PERIOD
(a) Subject to the terms of this Agreement, Licensee is granted a right to use Software for evaluation purposes without charge for a period of ten (10) days from the date of installation of Software unless otherwise specified ("Evaluation Period").
(b) Licensee's use of Software during Evaluation Period shall be limited to the internal evaluation of Software for the sole purpose of determining whether Software meets Licensee's requirements and whether Licensee desires to continue the use of Software.
(c) Upon expiration of Evaluation Period, Licensee must obtain License Key for perpetual use of Software or cease using Software. Software contains a feature that will automatically disable Software upon expiration of Evaluation Period. Licensee may not disable, destroy, or remove this feature of Software, and any attempt to do so will be in violation of this Agreement and will terminate Licensee's rights to use Software.
8. LICENSE FEES AND PAYMENTS
Licensee agrees to the terms and conditions of Software purchase published on Licensor's website at www.jetbrains.com. Licensee will pay to Licensor the license fee and other charges (if applicable) as set forth in the invoice or other purchase documentation. Licensor may charge Licensee interest for any payment that is more than thirty (30) days past due at the rate of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is lower.
(a) Licensor will provide Licensee with generally available Upgrades pursuant to upgrade terms published on Licensor's web site at www.jetbrains.com. If Licensee obtains a new License Key for Upgrade, License shall destroy a License Key obtained for the previous version of Software and cease using such version.
(b) If not agreed otherwise in writing between Licensor and Licensee, upon upgrading to new version of Software the relationship between parties shall be governed and amended (if applicable) by the terms and conditions of Licensee agreement related to Software available at www.jetbrains.com on the day of upgrade purchase.
10. LIMITED WARRANTY
SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND WITHOUT WARRANTIES. LICENSOR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS AFFILIATES, SUPPLIERS AND RESELLERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
11. DISCLAIMER OF DAMAGES
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY USER OF SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF THE USE OR INABILITY TO USE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR SOFTWARE UNDER THIS AGREEMENT.
12. EXPORT REGULATIONS
Licensee agrees and accepts that Software may be subject to import and export laws of any country, including those of the European Union and United States (specifically the Export Administration Regulations (EAR)). Licensee acknowledges that it is not a citizen, national, or resident of, and is not under control of the governments of Cuba, Iran, North Korea, Sudan or Syria and is not otherwise a restricted end-user as defined by applicable export control laws. Further, Licensee acknowledges that it will not download or otherwise export or re-export Software or any related technical data directly or indirectly to the above-mentioned countries or to citizens, nationals, or residents of those countries, or to any other restricted end user or for any restricted end-use.
13. TERM AND TERMINATION
(a) Except as otherwise provided in License Certificate, the license granted herein shall be perpetual.
(b) If Licensee fails to comply with the terms and conditions of this Agreement, JetBrains may terminate this Agreement and Licensee's right and license to use Software. Licensee may terminate this Agreement at any time by notifying JetBrains. Upon the termination of this Agreement, Licensee must delete Software from its computers and archives. LICENSEE AGREES THAT UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, LICENSOR MAY TAKE ACTIONS SO THAT SOFTWARE NO LONGER OPERATES.
Licensee agrees to be identified as a customer of Licensor and that Licensor may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee's business in Licensor's marketing materials, on Licensor's web site, in public or legal documents. Licensee hereby grants Licensor a license to use Licensee's name and any of Licensee's trade names and trademarks solely pursuant to this marketing section.
(a) Licensor reserves the right at any time to cease the support of Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of Software.
(b) This Agreement, including the Third Party Software agreements, constitutes the entire agreement between the parties concerning Licensee's use of Software, and supersedes any and all prior or contemporaneous oral or written representations, communications, or advertising with respect to Software. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both Licensee and Licensor.
(c) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach. The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
(d) This Agreement will be governed by the laws of Czech Republic, without reference to conflict of laws principles. Licensee agrees that any litigation relating to this Agreement may only be brought in, and shall be subject to the jurisdiction of, any Court of Czech Republic.
(e) Titles are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Either Licensor or Licensee may assign this Agreement in the case of a merger or sale of substantially all of its respective assets to another entity. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns.
For exceptions or modifications to this Agreement, please contact JetBrains at:
Address: Na hřebenech II 1718/10, Prague, 14700, Czech Republic
Fax: +420 241 722 540