GEARBOX Software License Agreement

THIS DOCUMENT IS A LEGAL AGREEMENT (the “License Agreement“) BETWEEN 2GEARS S.À R.L. (“We“, “Us”, “2Gears”) AND YOU AS A NATURAL PERSON, LAWFUL BUYER OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“You”) IN RELATION TO GEARBOX SOFTWARE (AS DEFINED BELOW) AND ALL AND ANY RELATED DEVELOPMENT TOOLS AND GEARS THAT ARE CREATED BY US IN SOURCE CODE FORMAT.

IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT.

BY CHECKING THE ACCEPTANCE BOX OR BY DOWNLOADING, INSTALLING, COPYING (INTO COMPUTER MEMORY) OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND ANY REVISED OR RENEWED VERSIONS THEREOF, AS WILL BE PUBLISHED ON 2GEARS’ WEBSITE AT HTTP://2GEARS.COM/GEARBOX/GEARBOX-LICENSE-AGREEMENT/ .

YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND 2GEARS.

THE PROVISION HEREOF MAY BE ACCEPTED BY YOU ONLY IN FULL WITHOUT ANY RESERVE.

IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT PROCEED WITH THE DOWNLOADING, COPYING, INSTALLATION OR ANY OTHER USE OF THE SOFTWARE OR ANY PORTION THEREOF.

THE SOFTWARE IS PROTECTED BY LUXEMBOURG COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT LAWS, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.

THE SOFTWARE IS LICENSED, NOT SOLD.

By accepting the provisions hereof, you confirm that you are legally capable and authorized to enter into this Agreement.

You hereby warrant that any equipment and communication facilities you use, including the services of a service provider you use are sufficient and intact for using the Software.

THIS LICENSE AGREEMENT DESCRIBES YOUR RIGHTS AND RESTRICTIONS WITH RESPECT TO THE SOFTWARE AND ITS COMPONENTS.

 

1.DEFINITIONS

Application” means any software, application, or elements that Your Designated User(s) develop using the Software or Modifications in accordance with this Agreement.

Designated User” shall mean a single distinct person for whom You have purchased a license to use the Software, whether such person is an employee acting within the scope of their employment with You or Your consultant or contractor acting within the scope of the services they provide for You. A Designated User can be replaced with a new Designated User only after being a Designated User for a minimum of six (6) months.

End User” means an end user of Your Application who acquires a license to such Application solely for their own internal use and not for distribution, resale, user interface design, or software development purposes.

Modification” means: a) any addition to or deletion from the contents of a file included in the original Software or previous Modifications created by You, and/or b) any new file that leverages any part of the original Software or previous Modifications.

Sample Code” means sample source code included with the Software and designated as “sample code,” “samples,” “sample application code,” and/or “snippets,” and/or found in directories labeled “samples” or “examples”.

Software” means (i) any and all software products licensed to You under this Agreement, either under the name Gearbox, Gears or otherwise, all as developed by or for 2Gears and delivered to You hereunder (ii) any related development tools and gears that are created by Us (iii) any complete or partial copies of any of the foregoing (iv) any technical information and data which is secret, substantial and identified, disclosed to You by Us in connection with this agreement, regardless of medium (iv) all patents of any type, design rights, utility models or other similar invention rights, copyrights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

Use” means to activate the processing capabilities of the Software, load, execute, access, employ the Software, or display information resulting from such capabilities.

 

2. LICENSE GRANT

You agree to install the Software only on information technology devices (e.g. hard disks or central processing units) identified by You pursuant to this Agreement that are known to the public as appropriate for Use or interoperation with the Software as a designated unit and which are located within your facilities and are your direct possession.

Subject to the payment of the fee required (where applicable), and subject to your compliance with all of the terms and conditions of this Agreement, We grant You a revocable, non-exclusive, non-transferable and non-sub-licensable license (i) for Designated User(s) to use the Software to create Modifications and Applications; (ii) for You to distribute the Software and/or Modifications to End Users solely as integrated into the Applications; and (iii) for End Users to use the Software as integrated into Your Applications in accordance with the terms of this Agreement.

For each Application that includes the Software, You agree that any individual working on the development of such Application, and thus having access to the Software – including any of Your employees or agents of your corporation and End-Users to whom you have assigned Add-Ons – will qualify as a Designated User under this License Agreement and must therefore personally and individually hold the required license on the Software.

You may modify the Sample Code solely for the purposes of designing, developing and testing Your own Applications. However, You are permitted to use, copy and redistribute Your modified Sample Code only if all of the following conditions are met: (a) You include Our copyright notice (if any) with Your Application, including every location in which any other copyright notice appears in such Application; and (b) You do not otherwise use Our name, logos or other of Our trademarks to market Your Application, unless otherwise agree by Us in writing.

This license is not sub-licensable except as explicitly set forth herein. This license ONLY grants You the right to use software created by Us, it does not grant any rights to use the JavaScript library ExtJS. To use the Software in any situation, after your 45-day trial has expired, You must also have a valid commercial ExtJS license.

You shall pay all fees associated with the Software licensed and any services purchased hereunder as set forth in the applicable invoice or at the time of purchase. All payments shall be made in the currency noted on the applicable ordering document within thirty (30) days of the delivery of the Software to you, or earlier as indicated on the ordering document. Except as expressly set forth herein, all fees are non-refundable once paid. You shall be responsible for all taxes, withholdings, duties and levies arising from the order.

 

3. OWNERSHIP

This is a license agreement and not an agreement for sale. We reserve ownership of all intellectual property rights inherent in or relating to the Software, which include, but are not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this Agreement.

 

4. PERMITTED USES, SOURCE CODE, MODIFICATIONS

All Add-ons developed by Us (either independently or jointly with You) and all rights associated therewith shall be the exclusive property of 2Gears. You agree to execute those documents reasonably necessary to secure 2Gears’ rights in the foregoing.

We provide You with source code so that You can create Applications and Modifications of the original Software. While You retain all rights to any original work authored by You as part of the Modifications, We continue to own all copyright and other intellectual property rights in the Software.

All Add-ons developed by or on your behalf without our participation and all rights associated therewith, shall be your exclusive property subject to 2Gears’ rights in and to the Software, which means that You can only sell your Add-ons to an End-User to the extent such End-User has also entered into the 2Gears’ license Agreement relating to the Software.

2Gears retains the right to independently develop its own Modifications or Add-ons to the Software, and You agree not to take any action that would limit 2Gears’ sale, assignment, licensing or use of its own Software or Modifications or Add-ons thereto.

Any Modification developed by or on Your behalf without 2Gears’ participation must not (and subject to other limitations set forth herein): enable the bypassing or circumventing any of the restrictions set forth in this Agreement and/or provide You with access to the Software to which You are not directly licensed; nor permit mass data extraction from the Software to any non-2Gears’ software, including use, modification saving or other processing of data in the non-2Gears’ software.

You may use the Software in any applications, frameworks, or elements that you develop using the Software in accordance with this License Agreement, provided that such use does not violate the restrictions set forth in this Agreement. You must not remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Software.

You are required to ensure that the Software is not reused by or with any applications other than those permitted herein.

 

5. PROHIBITED USES

You may not, without Our prior written consent, redistribute the Software or Modifications other than by including the Software or a portion thereof within Your own Applications, which must have substantially different functionality than the Software or Modifications and must not allow any third party to use the Software or Modifications, or any portions thereof, for software development or application development purposes.

You may not redistribute the Software or Modifications as part of any Application that can be described as a development toolkit or library, an application builder, a website builder or any Application that is intended for use by software, application, or website developers or designers.

You may not redistribute any part of the Software or Modifications or Your knowledge of the Software, or any information or documentation that You learn as a result of Your use of the Software, to create a product with the same or substantially the same functionality as the Software.

You may not transfer, rent, lease, or sublicense the Software or Modifications, or any portions thereof. You may not change or remove the copyright notice from any of the files included in the Software or Modifications.

More specifically, You shall be prohibited to:

  • modify, adapt, translate, change or create any derivatives based on the Software or any element thereof (including the audiovisual sequence and source code), including translation or localization;
  • remove any signs and/or information including the signs of intellectual rights protection, any individualization facilities;
  • copy (reproduce) the Software, except for the cases that are directly stipulated herein;
  • divide (disassembly) and decompile the Software and/or any elements thereof into components;
  • reverse engineer or otherwise try to extract the source code of the Software, introduce any changes into the source code, change the functionality of the Software;
  • distribute, sophisticate, sell, sublicense, rent, lease loan, pledge, commercialize or use it in any other way whatsoever (including without commercial benefit) the Software.

You are explicitly not allowed to use the Software together with a GPL licensed version of ExtJS.

UNDER NO CIRCUMSTANCES MAY YOU USE THE SOFTWARE  (INCLUDING WITHOUT LIMITATION THE SOURCE CODE THEREOF) AS THE BASIS FOR OR IN CONNECTION WITH AN APPLICATION THAT CONTAINS THE SAME, OR SUBSTANTIALLY THE SAME, FUNCTIONALITY AS THE  SOFTWARE  OR THAT IS INTENDED FOR SOFTWARE OR APPLICATION DEVELOPMENT PURPOSES.

 

6. TERMINATION

We are entitled to terminate this License Agreement and Your right to use the Software and Modifications with immediate effect if You fail to comply with any of the terms and conditions of this License Agreement. Upon termination, You agree to immediately cease using and destroy the Software or Modifications, including all accompanying documents, and confirm in writing that You have complied with this provision. The provisions of sections 5, 6, 7, 8 and 9 will survive any termination of this License Agreement.

We shall be entitled to unilaterally and extrajudicially repudiate this Agreement or any part thereof without a prior written notice to You, including in case of any breach by You of this Agreement or of any other agreements they may enter into with the 2Gears.

2Gears shall be entitled to suspend the provision of services, by blocking (removing) the account of the Designated User(s) and/or the End User(s). From the date of such blocking, this Agreement shall be deemed to be terminated.

Irrespective of the reasons for such termination (repudiation) hereof, the Designated user(s) and/or the End User(s) shall immediately remove the Sotware (any archive copies thereof) from computer memory.

 

7. DISCLAIMER OF WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR RESELLERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. WE DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE OR THE CODE IT PRODUCES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.

 

8. LIMITATION OF LIABILITIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LAW) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE CODE IT PRODUCES OR ANY OTHER SUBJECT MATTER RELATING TO THIS LICENSE AGREEMENT, EVEN IF WE OR OURRESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OUR ENTIRE LIABILITY WITH RESPECT TO ANY SUBJECT MATER RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE.

 

9. VERIFICATION

In order to properly asses the amount of the fee payable, You shall produce to Us the information required for calculating the remuneration for each installation and system (production, training, test, etc.). This information includes the number and name(s) of the Designated User(s), End User(s), name of the installation, the used Software, You will communicate the measurement results generated by the installation(s) whenever requested by Us.

We or a certified auditor acting on Our behalf, may, upon Our reasonable request and at Our expense, audit You with respect to the use of the Software. Such audit may be conducted by mail, electronic means or through an in-person visit to Your place of business. Any such in-person audit shall be conducted during regular business hours at Your facilities and shall not unreasonably interfere with Your business activities. We shall not remove, copy, or redistribute any electronic material during the course of an audit.

If an audit reveals that You are using the Software in a way that is in material violation of the terms of this Agreement, then You shall pay Our reasonable costs of conducting the audit. In the case of a material violation, You agree to pay Us any amounts owing that are attributable to the unauthorized use. In the alternative, We reserve the right, at Our discretion, to terminate the licenses for the Software, in addition to any other remedies available under law. This Section shall survive expiration or termination of this Agreement for a period of two (2) years.

We reserve all rights at law and equity with respect to underpayment of fees.

 

10. PAYMENT AND TAXES

If credit has been extended to You by Us, all payments under this Agreement are due within thirty (30) days of the date We mail an invoice to You. If We have not extended credit to You, You shall be required to make payment concurrent with the delivery of the Software by Us.

Fees and other charges described in this Agreement do not include VAT, foreign withholding, or any other taxes now or hereafter levied, all of which shall be for Your account. If 2Gears is required to pay Taxes, You shall reimburse us for such amounts. You hereby agree to indemnify Us for any taxes and related costs, interest and penalties paid or payable by Us.

Any value added tax, use tax, sales tax or similar tax (“Transaction Taxes”) shall be your sole responsibility. Each party shall pay all taxes (including, but not limited to, taxes based upon its income) or levies imposed on it under applicable laws, regulations and tax treaties as a result of this Agreement and any payments made hereunder (including those required to be withheld or deducted from payments). Each party shall furnish evidence of such paid taxes as is sufficient to enable the other party to obtain any credits available to it, including original withholding tax certificates. Notwithstanding the foregoing, Software ordered through Our resellers is subject to the fees and payment terms set forth on the applicable reseller invoice.

 

11. SUPPORT AND UPDATES

You are not entitled to any support for the Software under this Agreement. Any bugs or support requests can be submitted to Us through our dedicated email address (as found on our website) or through a dedicated support forum on our website. Support is given through a best-effort approach. We may request additional fees for support requests that We feel are not reasonably to be provided for free. In such case, a fee quote will be provided before support is given.

 

12. 2GEARS’ PROTECTION

In order to (i) protect our title to the results of intellectual property, (ii) obtain technical data, (iii) perform our obligations to the Designated User(s) and/or End User(s), and (iv) in order to provide security (prevent “cracking”, hacking, etc.) and correct operation of the Software and soft hardware that may be necessary for the proper functioning of the Software, we shall be entitled to use any technical facilities or methods of protection of the intellectual activity results or information. We shall be entitled to obtain information about the geographic location of the Designated User(s) and/or End User(s) in order to locate the Designated User(s) and/or End User(s) (within or beyond the territory of Use), about the employed computer or any parts thereof, etc.

 

13. MISCELANEOUS

You agree to preserve all Our trade secrets and confidential information and not to disclose or use in any way, either during or after the term of this Agreement, any of Our trade secrets or confidential information known to You as a result of this Agreement, except as authorized by Us in writing. The Software, its source code and the documentation constitute trade secrets and confidential information, which are valuable property of 2Gears and must be held in strict confidence.

The license granted herein applies only to the version of the Software received in connection with the terms of this Agreement, and to any updates and/or upgrades to which you may be entitled. Any previous or subsequent license granted to You for use of the Software shall be governed by the terms and conditions of the agreement entered in connection with purchase, installation or download of that version of the Software.

You agree that you will comply with all applicable laws and regulations with respect to the Software, including without limitation all export and re-export control laws and regulations.

You hereby warrant that you will not perform any acts aimed at removing any restrictions on the Use of the Software that may be set via the application of the said Software and methods of protection of the intellectual rights of 2Gears.

While redistributing the Software or Modifications thereof as part of Your Application, You may choose to offer acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this Agreement. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on our behalf. You shall indemnify Us and our resellers, or at Our option, defend Us and our resellers against any claim, suit or proceeding brought against Us or our resellers (i) arising by reason of Your accepting any such support, warranty, indemnity or additional liability; or (ii) arising out of the use, reproduction or distribution of Your Application, except to the extent such claim is solely based on the inclusion of the Software therein.

Further, You agree only to distribute the Software pursuant to an enforceable written agreement for Our benefit that includes all the limitations and restrictions of this Agreement and is as protective of Us and the Software as is this Agreement. For clarity, for Software for which you have paid a fee, You must purchase Designated User licenses for each contractor or consultant who uses the Software to create an Application on your behalf (including system integrators), whether or not such contractor or consultant has its own license to the Software.

You agree to be identified as a customer of Ours and You agree that We may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in our marketing materials and web site.

You may not assign or transfer this License Agreement without Our prior written consent. This License Agreement may be assigned by Us in whole or part and will inure to the benefit of Our successors and assigns.

Notwithstanding the foregoing, in any instance in which You transfer ownership of an Application on a work for hire basis, You may assign licenses for the total Designated Users that have used the Software to develop said Application under this Agreement to another party (Assignee) provided (i) you provide written notice to Us prior to the effective date of such assignment; and (ii) there is a written agreement, wherein the Assignee accepts the terms of this Agreement. Upon any such transfer, the Assignee may appoint new Designated Users.

You acknowledge that this License Agreement is complete and is the exclusive representation of our agreement. No oral or written information given by Us, Our resellers, or otherwise on Our behalf shall create a warranty or collateral contract, or in any way increase the scope of this License Agreement in any way, and You may not rely on any such oral or written information. No term or condition contained in any purchase order shall have any force or effect.

There are no implied licenses or other implied rights granted under this Agreement, and all rights, save for those expressly granted hereunder, shall remain with Us. In addition, no licenses or immunities are granted to the combination of the Software and/or Modifications, as applicable, with any other software or hardware not delivered by Us or Our resellers to You under this Agreement. Your rights under this Agreement apply only to Software, Modifications, and/or Applications for which all Designated Users are duly licensed hereunder.

 
If any provision in this License Agreement shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this License Agreement shall continue in full force and effect. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this Agreement shall remain in effect.

14. Regulatory Matters.

The Software is or may be subject to the export control laws of various countries. You agree that you will not submit the Software to any government agency for licensing consideration or other regulatory approval without the 2Gears’ prior written consent and will not export the Software to countries, persons or entities prohibited by such laws. You shall also be responsible for complying with all applicable governmental regulations of the country where You are registered, and any foreign countries with respect to the use of the Software.

This License Agreement may be modified only by a written instrument signed by an authorized representative of each party. The failure of either party to enforce any provision of this Agreement may not be deemed a waiver of that or any other provision of this Agreement.

This license agreement shall be governed by and construed in accordance with the laws of Luxembourg. The material law in any conflict arising from this Agreement shall thus be Luxembourg law. All parties irrevocably submit to the jurisdiction of the courts of Luxembourg and further agree to commence any litigation, which may arise hereunder, in the courts located in Grand Duchy of Luxembourg.