License Agreement for JetBrains dotTrace Profiling SDK

IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR COMPUTER, OR OTHERWISE USING JETBRAINS SOFTWARE, SERVICES OR PRODUCTS, LICENSEE IS BECOMING A PARTY TO THIS AGREEMENT AND LICENSEE IS CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH BELOW.

NOTE: This License Agreement forms a legally binding contract between you and JetBrains in relation to your use of the dotTrace Profiling SDK.

1. PARTIES

1.1. "JetBrains", "Licensor" or "We" means JetBrains s.r.o., having its principal place of business at Na hrebenech II 1718/10, Prague, 14000, Czech Republic, registered with Commercial Register kept by the Municipal Court of Prague, Section C, file 86211, ID.Nr.: 265 02 275.

1.2. "Licensee" or "You" means an individual or a legal entity entering into and exercising rights under this Agreement. For legal entities, "Licensee" includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.

2. DEFINITIONS

(a) "Profiling SDK" means software bundle known as JetBrains dotTrace Profiling SDK in binary and source form, including its documentation, usage samples, any upgrades, and any third-party software programs that are owned and licensed by parties other than Licensor and that are either integrated or made part of JetBrains dotTrace Profiling SDK.

(b) "Snapshot" means a copy of data files, including: (i) names, paths and metadata of assemblies executing in Application process; (ii) names of methods being executed in Application process; (ii) time spent by You in each method; (iv) Your domain and user name; and (v) type of computer and version of operating system running Application.

3. OWNERSHIP

Profiling SDK is the property of Licensor or its suppliers. Profiling SDK is licensed, not sold. Title and copyrights to Profiling SDK, in whole and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of Profiling SDK regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of Licensor and its suppliers.

You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Profiling SDK.

4. ACCEPTING THIS LICENSE AGREEMENT

4.1 In order to use the Profiling SDK, you must first agree to this License Agreement. You may not use the Profiling SDK if you do not accept this License Agreement.

4.2 You can accept this License Agreement by:

(a) clicking to accept or agree to this License Agreement, where this option is made available to you; or

(b) by actually using the Profiling SDK. In this case, you agree that use of the Profiling SDK constitutes acceptance of the Licensing Agreement from that point onwards.

4.3 You may not use the Profiling SDK and may not accept the Licensing Agreement if you are a person barred from receiving the Profiling SDK under the laws of the country in which you are resident or from which you use the Profiling SDK.

4.4 If you are agreeing to be bound by this License Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this License Agreement. If you do not have the requisite authority, you may not accept the Licensing Agreement or use the Profiling SDK on behalf of your employer or other entity.

5. GRANT OF LICENSE

Subject to the terms, conditions, and limitations set forth in this Agreement, Licensor hereby grants to You a limited, non-exclusive, non-transferable, no-charge, worldwide license to use Profiling SDK as follows:

(a) You may:

(i) install and run any number of copies of Profiling SDK;

(ii) use Profiling SDK in accordance with its documentation to collect information on performance issues;

(iii) save a local copy of Snapshot, and

(iv) make backup copies of Profiling SDK for archival purposes.

(b) You may not:

(i) sell, encumber, give, or sublicense, Profiling SDK, or any portions of Profiling SDK, 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 Profiling SDK, or create derivative works from Profiling SDK.

6. LIMITED WARRANTY

PROFILING SDK IS PROVIDED TO LICENSEE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES. USE OF THE DOTTRACE PROFILING SDK IS AT YOUR OWN RISK. JETBRAINS MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JETBRAINS, AND ITS 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 THE PRODUCTS, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. JETBRAINS (AND ITS AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) DOES NOT WARRANT THAT THE PRODUCTS ARE ACCURATE, RELIABLE OR CORRECT; THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE PRODUCTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

7. THIRD-PARTY SOFTWARE LICENSE

7.1 Licensee agrees to comply with the terms and conditions contained in Third-Party Software license agreements available in Profiler SDK documentation with respect to the applicable Third-Party Software.

7.2 Licensee agrees and acknowledges that Sections 6 and 8 of this Agreement shall also govern Licensee's use of the Third-Party Software. Licensor will have 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.

7.3 JETBRAINS 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.

8. DISCLAIMER OF DAMAGES

8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL JETBRAINS (OR ITS AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES), OR JETBRAINS' LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANYONE ELSE FOR: (A) ANY LOSS OF USE, DATA, GOODWILL, OR PROFITS, WHETHER OR NOT FORESEEABLE; (B) ANY LOSS OR DAMAGES IN CONNECTION WITH TERMINATION OR SUSPENSION OF LICENSEE'S ACCESS TO OUR PRODUCTS IN ACCORDANCE WITH THIS AGREEMENT, AND (C) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE (X) RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE, (Y) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR (Z) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR ACCESS TO THE SERVICES OR SOFTWARE UNDER THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

8.2 OUR TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO TEN (10) US DOLLARS. THIS LIMITATION WILL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE LIABILITY EXCEEDING THE AMOUNT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. TERM AND TERMINATION

9.1 This License Agreement will continue to apply until terminated by either you or JetBrains as set out below.

9.2 If you want to terminate this License Agreement, you may do so by ceasing your use of the Profiling SDK.

9.3 JetBrains may at any time terminate this License Agreement with you if:

(a) you have breached any provision of this License Agreement; or

(b) JetBrains is required to do so by law.

9.4 When this License Agreement comes to an end, all of the legal rights, obligations and liabilities that you and JetBrains have benefited from, been subject to (or which have accrued over time whilst this License Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 12.2 shall continue to apply to such rights, obligations and liabilities indefinitely.

10. EXPORT REGULATIONS

Licensee agrees and accepts that dotTrace Profiling SDK 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 JetBrains Toolbox 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.

11. CHANGES TO THE LICENSE AGREEMENT

11.1 JetBrains may make changes to the License Agreement as it distributes new versions of the Profiling SDK. When these changes are made, JetBrains will make a new version of the License Agreement available on the website where the Profiling SDK is made available.

11.2 You agree that the form and nature of the Profiling SDK that JetBrains provides may change without prior notice to you and that future versions of the Profiling SDK may be incompatible with applications developed on previous versions of the Profiling SDK.

12. GENERAL LEGAL TERMS

12.1 If any court of law having the jurisdiction to decide on this matter rules that any provision of this License Agreement is invalid, then that provision will be removed from this License Agreement without affecting the rest of this License Agreement. The remaining provisions of this License Agreement will continue to be valid and enforceable.

12.2 This License Agreement and your relationship with JetBrains under this License Agreement are governed by laws of Czech Republic. All disputes arising from the present License Agreement and/or in connection with it shall be finally decided with the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic by three arbitrators in accordance with the Rules of that Arbitration Court.


For exceptions or modifications to this Agreement, please contact JetBrains at:
Address: Na hřebenech II 1718/10, Prague, 14000, Czech Republic
Fax: +420 241 722 540
E-mail: sales@jetbrains.com