ownCloud COMMERCIAL LICENSE
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING OR INSTALLING THE OWNCLOUD, INC. (“OWNCLOUD”) COMMERCIAL SOFTWARE (AS DEFINED BELOW). BY INSTALLING OR USING THE COMMERCIAL SOFTWARE, YOU (AS END USER OR IF YOU ARE NOT THE END USER, AS REPRESENTATIVE/AGENT AUTHORIZED TO BIND THE END USER) CONSENT TO BE BOUND BY THE TERMS OF THIS OWNCLOUD COMMERCIAL LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL OR USE THE COMMERCIAL SOFTWARE.
THE OWNCLOUD PRODUCTS INCLUDE THE COMMERCIAL SOFTWARE, OWNCLOUD DESKTOP CLIENT (ALL VERSIONS) – LICENSED AS GPL V2 LOCATED AT http://www.gnu.org/licenses/gpl-2.0.html), OWNCLOUD ANDROID MOBILE APP, OWNCLOUD IOS MOBILE APP, AS WELL AS OTHER THIRD PARTY SOFTWARE, INCLUDING OPEN SOURCE SOFTWARE. THE LICENSE AGREEMENT FOR OPEN SOURCE SOFTWARE IS LOCATED IN THE SOFTWARE APPLICATION OR COMPONENT’S SOURCE CODE AND PERMITS YOU TO RUN, COPY, MODIFY, AND REDISTRIBUTE THE SOFTWARE COMPONENT (SUBJECT TO CERTAIN OBLIGATIONS IN SOME CASES), BOTH IN SOURCE CODE AND BINARY CODE FORMS. THIS STATEMENT OF LICENSE RIGHTS DOES NOT LIMIT YOUR RIGHTS UNDER, OR GRANT YOU RIGHTS THAT SUPERSEDE, THE LICENSE TERMS OF ANY PARTICULAR APPLICATION OR COMPONENT.
- “Client” means a person or entity who (i) is granted a an Evaluation License (as defined in Section2.4), or (ii) purchases a License (as defined in Section 2.1) of the Commercial Software.
- “Commercial Software” means the ownCloud Enterprise Edition software.
- “Order Form” means an order form or similar document issued by ownCloud or an authorized reseller of ownCloud to Client.
- “User” means any Client end user of the Commercial Software or the ownCloud Community Edition software.
2. Commercial License Grants
- License Grant to Commercial Software. Unless Client is obtaining an Evaluation License (as defined below), ownCloud grants to Client an annual, renewable, non-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide License to: (i) install the Commercial Software on an unlimited number of servers; (ii) allow up to the number of Users identified in the Order Form to access the Commercial Software for use on an unlimited number of devices; and, (iii) allow up to the number of Users identified in the Order Form to copy and use the documentation (the “Documentation”) accompanying the Commercial Software (collectively, the “License”). The grant of the License shall also be subject to the terms and conditions of the Order Form.
- Modifications to Commercial Software. During the term of the License, Client shall have the right to modify the Commercial Software. Modifications to the Commercial Software may, however, corrupt the Commercial Software. At Client’s election, any modifications to the Commercial Software shall either: (i) be owned by Client, in which case ownCloud shall have no obligations of any nature with respect to the support and maintenance of such modified Commercial Software; or (ii) Client shall and shall cause its employees and agents to contribute such modified Commercial Software to the ownCloud software project, in which case ownCloud can, in its sole discretion elect to support and maintain such modifications as part of a future version of the Commercial Software. Please contact firstname.lastname@example.org for a Contributor Agreement.
- Restrictions on Commercial Software Licenses. Client shall not (and shall not allow any Users or other third parties to), reverse engineer, reverse assemble or otherwise attempt to discover any source code of the Commercial Software that was not provided to Client, distribute, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Commercial Software, unless such activity is expressly permitted or required by law or has been expressly authorized by ownCloud in writing.
- Evaluation License.If agreed to by ownCloud and Client, ownCloud may deliver to Client an “evaluation” copy of the Commercial Software, in which case, subject to the terms and conditions of this License, ownCloud grants to Client, and Client hereby accepts, a limited, temporary, non-exclusive, non-transferable license (the “Evaluation License”) to use the Commercial Software, including the Documentation, for evaluation purposes for Client’s internal business use only for a limited specific number of days beginning from the date of delivery to Client of the Commercial Software (the “Evaluation License Period”). ownCloud, in its sole discretion, shall determine the length of the Evaluation License Period.
- Expiration of Evaluation License Period. If Client wishes to use the Commercial Software after expiration of the Evaluation License Period, then Client must purchase the License and pay the applicable License fee. Upon ownCloud receiving payment of the applicable License fee, the Evaluation License granted hereunder shall thereafter be automatically converted to the License.
- No Warranty During Evaluation License Period. ownCloud provides no warranty, express or implied, of any kind during the Evaluation License Period. During the Evaluation License Period, ownCloud provides the Commercial Software “AS IS”, AND THE LIMITED WARRANTY (AS DESCRIBED IN SECTION 4 BELOW) SHALL NOT APPLY, AND SHALL BE VOID AND OF NO FORCE AND EFFECT.
3. Intellectual Property
- Intellectual Property Rights. The Commercial Software and each of its components are owned by ownCloud and, in some cases, other licensors and are protected under copyright law and under other laws as applicable. Title to the Commercial Software and any component, and to any copy, modification, or merged portion shall remain with ownCloud and its licensors, subject to the applicable license.
- Marks. No right or license, express or implied, is granted in this license for the use of any ownCloud, Client or third party trade names, service marks or trademarks, including, without limitation, the distribution of the Commercial Software utilizing any ownCloud trademarks. “ownCloud” and the “cloud” logo are trademarks of ownCloud in the U.S. and other countries. This License does not permit Client to distribute the Commercial Software or its components using ownCloud’s trademarks, regardless of whether the copy has been modified.
- Equitable Relief. Client acknowledges and agrees that, in the event that Client takes any action that is inconsistent with ownCloud’s ownership rights contained herein, monetary damages may be an inadequate remedy. Accordingly, Client agrees that ownCloud shall be entitled to obtain, without the necessity of posting any bond or other security, injunctive relief against Client.
4. Limited Warranty
- Limited Warranty. ownCloud represents and warrants to Client that (i) that the Commercial Software shall perform in all material respects with the functional specifications set forth in the Documentation, (ii) to ownCloud’s knowledge, the Commercial Software does not, at the time of delivery to Client, infringe a valid United States copyright, trademark, or patent, or involve the misappropriation of a trade secret of a third party, or (iii) contain malicious or hidden mechanisms or code for the purpose of damaging or corrupting the Commercial Software. If ownCloud is unable to substantially correct any non-conformance within thirty (30) days after notification, Client may terminate this License and receive a refund of license fees paid for the non-conforming Commercial Software. The foregoing sets forth Client’s exclusive remedy and ownCloud’s entire liability for a breach of the warranty set forth in clause (i) above.
- Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, THE SOFTWARE IS PROVIDED BY OWNCLOUD “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. OWNCLOUD DOES NOT GUARANTEE OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE COMMERCIAL SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE USE OF THE COMMERCIAL SOFTWARE WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, BE ERROR FREE, OR APPEAR OR PERFORM PRECISELY AS DESCRIBED IN THE ACCOMPANYING DOCUMENTATION, OR THAT OWNCLOUD WILL CORRECT ALL ERRORS.
5. Limitation of Liability and Disclaimer of Damages
- Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR AN ORDER FORM, IN NO EVENT WILL OWNCLOUD BE LIABLE TO CLIENT AND ITS USERS FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF OWNCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS LICENSE FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation of Liability.FOR ALL EVENTS AND CIRCUMSTANCES, OWNCLOUD’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS LICENSE, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS RECEIVED BY OWNCLOUD FROM CLIENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
6. Termination and Termination
- Term and Termination. The license of the Commercial Software hereunder shall become effective upon delivery of the Commercial Software to Client, by download, on a physical media, or otherwise, and shall continue in effect thereafter, unless terminated in accordance with the provisions of this license or the Order Form. Either party may terminate this License if the other party has materially breached its obligations hereunder and such party has not cured such breach within thirty (30) days of being notified in writing thereof by the other party. Notwithstanding the foregoing, ownCloud may terminate the License immediately without notice upon any failure by Client to pay in full the applicable License fees as provided in the Order Form. Nothing herein shall be deemed to extend the Evaluation License Period.
- Effect of Termination. Upon the termination or expiration of this License, Client must stop usage of and deinstall any Enterprise Modules of the Commercial Software. Identification of all modules that are considered Enterprise Modules can be found at the ownCloud Apps Overview page which may be found in the ownCloud Admin Panel embedded in the Commercial Software or located at https://owncloud.com/licenses/owncloud-commercial, which may be updated from time to time. In addition, any rights relating to modifying the Commercial Software shall cease, unless the specific licensing terms of any open source software incorporated into the Commercial Software expressly permit such modifications and any such modifications shall be subject to the terms and conditions of such open source license, including, without limitation, the Affero General Public License (the “AGPL”). Any obligations of ownCloud to Client relating to support, maintenance, updates or upgrades of the Commercial Software shall also terminate. UNLESS OTHERWISE AGREED TO BY OWNCLOUD, ANY AND ALL FEES PAID TO OWNCLOUD ARE NON-REFUNDABLE.
- Survival. Any obligation of Client to pay fees or any other amounts to ownCloud shall survive termination of the License. Additionally, any other provisions that by their nature are reasonably intended to survive termination or expiration shall also survive.
7. Export Control
Client and each User agrees not to export, or re-export, or cause to be re-exported, any ownCloud materials or portion thereof, to any country which, under the laws of the United States, such User is or might be prohibited from exporting its technology.
If any provision of this License is held to be unenforceable, the enforceability of the remaining provisions shall not be affected. Any claim, controversy or dispute arising under or relating to this License shall be governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles. The United States Convention on Sale of Goods will not be applicable to this License.