END USER LICENSE AGREEMENT FOR Episerver CMS, COMMERCE, FIND (ON-PREMISES), RELATE AND SUPPLEMENTAL PRODUCTS
(Valid as of April 15th, 2015)

 

PLEASE READ THROUGH THE FOLLOWING TERMS AND CONDITIONS OF THE END USER LICENSE AGREEMENT ("AGREEMENT") BELOW BEFORE LICENSEE INSTALLS AND/OR USES THE SOFTWARE IN ANY WAY. BY INSTALLING, COPYING, DOWNLOADING, OR IN ANY OTHER WAY USING THE SOFTWARE, LICENSEE ACCEPTS THE CONDITIONS BELOW AND THIS AGREEMENT BECOMES A BINDING OBLIGATION ON LICENSEE. BY SIGNING BELOW, LICENSEE HAS AGREED THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL OTHER PROPOSALS AND PRIOR AGREEMENTS, ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREIN.  IF LICENSEE DOES NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL, COPY, DOWNLOAD, IN ANY OTHER WAY USE THE SOFTWARE, OR OTHERWISE INDICATE REFUSAL, AND MAKE NO FURTHER USE OF THE SOFTWARE.

 

1. Definitions

 

"Agreement" means this End User License Agreement.

"Applied Software" means the third party software listed in Section 12 below.

"Development Licenses" means a limited License Type that can only be used for non-commercial purpose(s).  They cannot be used for any public facing Site or Server and are typically labeled as, but not limited to, "Partner", "Developer", “Demo", “Demonstration” or "Evaluation" license(s). Developer Licenses are limited to Site, Server and/or usage restrictions.

"Episerver" means Episerver AB and Ektron Inc.

"Implemented Software" means the implemented third party software listed in Section 11 below.

"Intranet Licenses" means a limited License Type that can only be used for internal purposes by Licensee and only by personnel within Licensee’s organization.  They cannot be used for any public facing Site or Server and are typically labeled as, but not limited to, "Intranet" licenses. Intranet Licenses are limited to Site, Server and/or usage restrictions.

"Licensee" means the customer licensing the Software in accordance with this Agreement.

"License Type" means the license types provided by Episerver from time to time.

"Products" means the product Episerver CMS, Commerce, Find, Relate and Supplemental products provided by Episerver as further described in Section 2.1 and 2.2 below.

"Software" means (i) all of the contents of the data, files or other media in machine-readable form provided under this Agreement, including (a) all software provided by Episerver (b) Applied Software, (c) Implemented Software (d) Third party software included in Packages of software, (ii) related explanatory written material or files ("Documentation"); but excluding any part of the original source code of the Implemented Software.

"Software Bundles" means a packaging of license(s) and/or License Type(s), i.e. Episerver Social Commerce Solution, Episerver Social Intranet Solution, etc.  Software Bundles are subject to all terms, conditions, and end user license agreements of whichever Software and/or License Type(s) that include and are limited to Site, Server and/or usage restrictions.

"Third Party Products" means third party software provided by a third party which may be installed together with the Software.

"Use" means to access, install, download and/or execute the Software in order to utilize the functionality of the Software.

 

All defined terms within the Episerver License Types and General Terms and Conditions (http://www.Episerver.com/license_types) shall apply in this Agreement.

 

2. Software License

 

For so long as the Licensee complies with the terms of this Agreement and makes full and timely payment of all fees and charges, Episerver grants Licensee a non-exclusive, non-transferable limited license to use the Software solely for Licensee’s internal business purposes and in accordance with the following conditions:

2.1 General Use of Products. The condition for general Use differs depending on the Product and the terms and conditions for the License Type acquired by the Licensee. Additional definitions, terms, conditions and restrictions will apply depending on license type, and can be found on Episerver License Types and General Terms and Conditions.  Episerver offers the following Products:

 

(i) Episerver CMS™, Episerver Commerce™, and Episerver Relate™ Production License. The Licensee may install the Software in machine-readable, object code form on one (1) physical computer/Server or on one (1) virtual Server in a virtual operating system environment for each license purchased. Each license is valid for one (1) Episerver Site.

 

(ii) Episerver Development License(s). The Licensee may install Development License(s) of the Software in machine-readable, object code form on one (1) non-public facing physical developer computer or on one (1) non-public facing virtual developer instance in a virtual operating system environment to be used by a single user. Development License(s) are further limited by time, user and/or usage rights, defined within the Episerver License Types and General Terms and Conditions.

 

(iii) Episerver Demonstration License(s). The Licensee may install Demonstration License(s) of the Software in machine-readable, object code form on one (1) non-public facing physical developer computer or on one (1) non-public facing virtual developer instance in a virtual operating system environment to be used for demonstration purposes only. Demonstration Licenses are further limited by time, user and/or usage rights, defined within the Episerver License Types and General Terms and Conditions.

 

(iv) Software Bundle(s). The Licensee may install a Software Bundle in machine-readable, object code form on the number of physical computer(s)/Server(s) or on the number virtual Server(s) in a virtual operating system environment that the Software Bundle purchased includes. Each Software Bundle is valid for the explicit number of Episerver Site(s) and Server(s). For example, the Episerver Online Sales Solution - 5 Sites Software Bundle is subject to the end user license agreements and terms applicable for both Episerver CMS™ and Episerver Commerce™, will support up to five (5) Episerver applications on three (3) physical/virtual Servers. Software Bundles may be further limited by time, user and/or usage rights which can be found within the Episerver License Types and General Terms and Conditions.

 

(v) Episerver Intranet License(s). The Licensee may install Intranet License(s) of the Software in machine-readable, object code form on one (1) non-public facing physical computer/Server or on one (1) non-public facing virtual Server in a virtual operating system environment for each license purchased. Intranet Licenses may be further limited by time, user and/or usage rights which can be found within the Episerver License Types and General Terms and Conditions.

 

(vi) Episerver Find (On-Premise License). The Licensee may install the Software in machine-readable, object code form on one (1) physical computer/Server or on one (1) virtual Server in a virtual operating system environment for each license purchased.  Each license is valid for one (1) licensing organization.  The Licensee must allow Episerver remote administrative access to the installed Software at all times. The Licensee may not be use the Software to create a hosted index service.

 

2.2 General Use of Supplemental Products. Episerver offers the following Supplemental products on the following conditions:

(i)  Add-Ons, Modules, Connectors, and Packages of software. The Licensee may install the Software in machine-readable, object code form on one (1) physical computer/Server or on one (1) virtual Server in a virtual operating system environment for each license they have purchased. Add-Ons, Modules, Connectors, and Packages of software can only be used in combination with a Product on the terms and conditions for the License Type acquired, may include Third Party Software and may require acceptance of additional and/or third-party license and/or service agreements.

(ii) Developer Add-Ons and Open-Source Packages. The Licensee may install Developer Add-Ons and Open-Source Packages in machine-readable, object code form which may be limited by Server, Site, other usage restriction, and may require acceptance of additional license agreements.

2.3 Backup copy. The Licensee may make one (1) backup machine-readable, object code copy of the Software for non-productive, archiving purposes.

2.4 Modifications. The Licensee may modify the disclosed parts of the Software solely in connection with Licensee’s internal business purposes. Episerver has no liability for any such modifications or for any faults or errors caused by it (see Section 6.4 below). Episerver recommends that Licensee implement such modifications with the assistance of a developer certified by Episerver.

2.5 Third Party Products. The Software may be installed together with software provided by a third party ("Third Party Products"). With regards to Third Party Products, the relevant third-party license terms and conditions shall apply. Episerver makes no warranties regarding Third Party Products and disclaims any and all liability for such products.

2.6 Service Channel. The Episerver Software has a build in service channel used for automatic license key installation and updates, security announcements and other information. To be able to provide these services the following information might be transmitted and stored at Episerver: License key information, software version, hostname (website URL), host IP/MAC-address and machine name.

 

3. Restrictions

 

3.1 Transfer. Except as expressly authorized in this Agreement, Licensee shall not hire out, lease, lend, assign, sublicense, distribute (electronically or otherwise), resell, sell, create any derivative works of, or otherwise transfer all or any portion of the Software to a third party. Further restrictions are set forth in i.a Section 10.3 and 12.1 below.

3.2 Decompilation. Except as expressly authorized in this Agreement, explicit contract bound permission given by Episerver, or to the extent expressly permitted by applicable law, Licensee shall not copy, modify, reverse engineer, decompile, disassemble, translate, make works derivate of the Software or otherwise attempt to discover the source code of the Software. Any violation of this clause shall result in immediate revocation of this license. Licensee may request permission from Episerver to decompile the Software for purposes of fault analysis, integration planning and other internal business purposes, such permission to be expressly granted by Episerver in writing and at its sole discretion.

3.3 Redirect. The Products shall not be used in solutions that use an internal redirect (automatic server side or client side re-routing of traffic) for purposes of circumventing Episerver license restriction software, code, processes, and/or methods.

 

4. Ownership and Intellectual Property Rights

 

4.1 Episerver shall have sole and exclusive ownership of all right, title and interest in and to the Software, the Documentation, all copies and derivative works thereof (regardless of form or media in or on which the original and other copies may exist), including all copyright, trademark, patent, trade secret, know-how and other intellectual property rights pertaining thereto, subject solely to the limited right and license expressly granted to Licensee herein. Episerver shall retain all rights to its name and trademarks. With regard to Applied Software or Third Party Software included in Packages all the above mentioned rights shall be owned by the third party from whom Episerver has acquired the right to use the Applied or Third Party software, subject solely to the limited right and license expressly granted to Licensee herein. The structure and code of the Software are valuable trade secrets of Episerver and remain the sole property of Episerver or, respectively the third party who owns the Applied Software or Third party software.

4.2 The Software, owned by Episerver, is protected by Swedish, United States and international copyright legislations.

4.3 This license is not a sale of the Software or any updates or new releases, or any copy. Except for the limited license granted under this Agreement, the Licensee obtains no other rights in or to the Software. There are no implied licenses under this Agreement and Episerver reserves any rights not expressly granted to Licensee under this Agreement.  This Section 4 shall survive termination of this Agreement.

 

5. Security

 

The Licensee shall pay special attention to security aspects related to the Software in connection with the use of the Internet. Gaps in security may exist or be discovered in the Software related to such use. The Licensee shall carefully follow up and monitor developments within the field, in order to ensure security in connection with the use of the Software. Additionally, small errors or mistakes in configuration and/or installation may cause or result in security problems. Episerver hereby disclaims any and all liability for any security issues related to Licensee’s use of the Software. 

 

6. Limited Warranty, Limitation of Liability and Indemnification

 

6.1 For a period of thirty (30) days following delivery of the Software, Episerver warrants that the Software will perform substantially in accordance with the Documentation supplied by Episerver with the Software. Episerver’s sole and exclusive obligation for breach of this limited warranty shall be to use its commercially reasonable efforts to remedy or supply a temporary fix, or make an emergency bypass. To the extent Episerver cannot perform its obligations according to the forgoing sentence Episerver shall refund to Licensee the fee paid for such Software.  This limited warranty shall not be valid if the Software was subjected to abuse, misuse, accident, alteration or unauthorized modification or installation.  Other than this limited warranty, the Software is provided AS IS.

6.2 EXCEPT AS SET FORTH IN THIS AGREEMENT AND TO THE EXTENT ALLOWED BY LAW, Episerver AND ITS RESELLERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTERS, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Episerver DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Episerver, ITS DEALERS, DISTRIBUTORS, RESELLERS, AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

6.3 UNDER NO CIRCUMSTANCES SHALL Episerver, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE OR PRODUCTS, HAVE ANY LIABILITY OF ANY KIND TO LICENSEE, ANY AUTHORIZED USER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS OR REVENUES), PUNITIVE OR OTHER INDIRECT LOSSES OR DAMAGES (EVEN IF Episerver HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE) RESULTING FROM OR ARISING OUT OF (WHETHER DIRECTLY OR INDIRECTLY) ANY ACT OR OMISSION OF ANY KIND HEREUNDER BY Episerver, ANY ACCESS TO OR USE BY LICENSEE OR ANY OTHER PERSON OF THE SOFTWARE, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL Episerver'S AGGREGATE LIABILITY TO LICENSEE AND ANY OTHER PERSON FOR LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF OR PURSUANT TO THIS AGREEMENT EXCEED THE AGGREGATE OF ALL FEES PAID BY LICENSEE FOR THE SOFTWARE OR PRODUCT AT ISSUE. 

6.4 With respect to faults and errors in any Third Party Products, the relevant third-party terms and conditions shall apply. Episerver shall not be liable for any faults or errors in any Third Party Products or related to use of the Software in conjunction with any such Third Party Products. The Licensee shall contact the relevant third-party supplier regarding all matters relating to such Third Party Products.

6.5 Except as otherwise set forth in this Agreement and except in the event Licensee is in material breach of this Agreement, Episerver shall indemnify, defend and hold Licensee harmless (including Licensee’s officers, director, agents, representatives and employees) from: any direct claim, direct liability, direct loss, direct expense or demand, including legal fees and direct costs and including without limitation third-party claims based on infringement caused solely by the Software owned by Episerver. This indemnity requires that Episerver receive notice immediately of any third-party claims and is in sole control of the defense of such claim, including but not limited to any settlement arrangement.

6.6 Licensee agrees to indemnify, defend and hold Episerver harmless (including Episerver’s officers, director, agents, representatives and employees) from: any claim, liability, loss, expense or demand, including legal fees and costs and including without limitation claims based on copyright infringement, related to Licensee’s modifications of the Software or Licensee’s merging or including the Software with other software or other violation of this Agreement by the Licensee.

 

7. Support

 

7.1 No support, upgrades or updates are provided under this Agreement. Software updates may be provided by Episerver by purchase of a Software subscription. Technical support for the Software may be provided by the reseller from which the Licensee purchased the Software pursuant to a separate support agreement or contracted with Episerver within a separate agreement. Please check with the reseller of the Software regarding any such support obligations.

 

8. Termination

 

8.1 This Agreement is effective until terminated. In the case that Licensee is in breach of any of the provisions in this Agreement, Episerver shall have the right to terminate this Agreement, such termination to be effective immediately. Upon such termination, the Licensee shall delete all copies of the Software and will provide Episerver certification of destruction of the Software, all copies thereof, and all materials and Documentation related thereto, at the request of Episerver.

8.2 If Episerver, by any reason, no longer should have the necessary licenses for the Implemented Software or the Applied Software Episerver shall within reasonable time and with reasonable effort provide a substitute for such software.  If no such substitute may be found, Episerver may, at its own option, terminate this license and return any license fee to the user minus any depreciation in the value of such software.

 

9. Governing Law and Dispute Resolution

 

9.1 General. Governing Law and Jurisdiction depend on where Customer is domiciled. In all cases, the Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

9.2 Alternative Dispute Resolution. The Parties agree that any and all disputes, claims or controversies arising out of or related to this Agreement, including any claims under any statute or regulation ("Disputes"), shall be submitted first to non-binding mediation. If the Disputes are not resolved through mediation within sixty (60) days, then, upon the election of either party, the Disputes shall be submitted for binding arbitration.

9.3 Unresolved Disputes. Any unresolved controversy or claim arising out of or relating to the Agreement, except for any such controversies or claims arising out of Episerver’s intellectual property rights for which a provisional remedy or equitable relief is sought, shall be submitted to arbitration in accordance with rules based on the Domicile of the Customer, indicated below. The arbitration shall take place based on the Domicile of the Customer, indicated above, in accordance with the rules indicated below, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. Each party will bear its own costs with respect to any disputes arising under this Agreement. Each of the Parties to the Agreement consents to personal jurisdiction for any equitable or other action sought in the location indicated above, based on the domicile of the Customer.

If Customer is Domiciled in:

Governing Law:

Jurisdiction:

United States of America, Canada, Mexico or any country in Central or South America or the Caribbean

New Hampshire and controlling U.S. Federal Law.

Arbitration according to the rules of the American Arbitration Association (the “AAA”).  Arbitration shall occur in the State of New Hampshire.  English will be the language used.

Each of the Parties to the Agreement consents to personal jurisdiction for any equitable or other action sought with respect to claims arising out of Episerver’s intellectual property rights in a U.S. District Court in New Hampshire or any court of the State of New Hampshire having subject matter jurisdiction.

United Kingdom (including England, Northern Ireland, Scotland and Wales), Ireland, Australia and New Zealand

United Kingdom (including England and/or Wales) laws.

London Court of International Arbitration Rules. The arbitral tribunal shall be composed of a sole arbitrator, to be appointed by agreement between the parties or, in default of agreement by the President of the Law Society of England and Wales.  Arbitration shall occur in London, England.  English will be the language used.

Rest of the World

Laws of Sweden

Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce.

Arbitration shall occur in Stockholm, Sweden.

English will be the language used.           

 

10. General provision

 

10.1 The following contractual documents shall apply between Episerver and Licensee and form part of this Agreement: (i) This Agreement and (ii) Episerver License Types and General Terms and Conditions.  Subsection (ii) can be found at Episerver License Types and General Terms and Conditions.  In case of any discrepancy or inconsistency between the contractual documents, the documents shall prevail in the order listed above, unless the circumstances clearly induce otherwise.

10.2 Amendments or supplements to this Agreement must be made in written form and executed by both parties hereto in order to be valid between the parties.

10.3 This Agreement is valid for the version(s) of the Software released after April 15th 2015. Episerver may amend the terms and conditions of this Agreement for any upcoming versions of the Software.

10.4 Licensee shall not assign or sublicense this Agreement without Episerver’s prior written consent, which consent may be withheld for any or no reason.  Either party may assign all or part of its rights under this Agreement to an affiliate or to any entity that succeeds to or acquires all or substantially all of the business or assets of such party through merger, consolidation, or acquisition of stock or assets. This Agreement is binding on any permitted assignees or sub licensees.

 

11. Implemented Software

 

11.1 The following software has been implemented as a part of the Product.

(i) Private port of Lucene dot net, Open Source, (Apache Software License); (ii) Log4net, Open Source, (Apache Software License Version 2.0); (iii) Simple CSS Parser, (Code Project Open License 1.02); (iv) CommonServiceLocator, (Microsoft Public License (Ms-PL)); (v) Structure Map, (Apache Software License Version 2.0); (vi) NuGet Packet Manager, (Apache Software License Version 2.0); (vii) Castle Project - Core 2.5.2, (Apache Software License Version 2.0); (viii) SGML Reader (Microsoft Public License (Ms-PL)); and (ix) EFExtensions, (Microsoft Limited Public License).

11.2 By agreeing to this Agreement the Licensee also acknowledges that the license agreements for the above listed software and MIT/BSD licensed components have been made available at http://www.Episerver.com/implemented_software; that the Licensee has taken notice of said license agreements; and that the Licensee hereby accepts the terms and conditions of these license agreements to be, when applicable, binding to the Licensee.

 

12. Other applied third party software

 

12.1 JW Player is considered to be a part of the Product however constructed by a third party (the "Applied Software").  In addition to Section 3.1 above, Episerver is not permitted to give authorization to a third party according to said section with respect to the Applied Software.

 

13. Compatibility

 

As between Episerver and the Licensee Section 6, 7, 8 and 10 shall also apply with respect to the Implemented Software, unless the license on the specific Implemented Software explicitly states otherwise.