IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT” or “EULA”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE UNDER THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “you”), AND Xcellence-IT (“Xcellence-IT” or “Licensor”) AND CONCERNS THEMES, TEMPLATES MODULES, PLUGINS, EXTENSIONS OR ANY OTHER SOFTWARE (“The Software”) MADE AVAILABLE BY Xcellence-IT THROUGH THIS WEBSITE. BY CHECKING THE “I HAVE READ AND AGREE TO THE END USER LICENSE AGREEMENT” BOX BEFORE PURCHASING A PRODUCT AND/OR BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY Xcellence-IT THROUGH THIS WEBSITE OR ANY OTHER WEBSITE OWNED BY Xcellence-IT, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.
Terms and Definitions
“Owner or Licensor” shall mean Xcellence-IT, that is the only owner of all Software rights for the Software, made available through this web site, which rights are granted by the law of a jurisdiction, including right of property as well as exclusive author and interest rights.
You (or “Your”) or Licensee shall mean you or the company you represent and are authorized to bind.
“Software” shall mean themes, templates, modules, plugins, extensions or any other software made available by Xcellence-IT through this or other web site owned by Xcellence-IT.
The “source code” for a work means the preferred form of the work for making modifications to it. “Object code” means any non-source form of a work.
“New release product” – new version of the Software which contains new features and functions and/or upgraded features and functions. New release products will be defined by an increased version number. For example, version 1.0 will be the new release until replaced by version 2.0.
“Website” shall mean one page or several pages in digital form, accessed and transported with the HTTP / HTTPS protocol.
“Domain/URL” – shows the locations (address) of a web site on Internet. For example: URL: http://www.domain.com.
“Support and Maintenance” means the optional fee-based subscription that enables a Customer to receive access to support and new releases of any updates to the Software.
“Third Party Software” includes any third-party software that may be included with the software.
nopCommerce is an open source .NET e-commerce software platform.
Apache Solr is an open source enterprise search platform.
1. Grant of License
Xcellence-IT grants you a non-exclusive limited license to use the Software in accordance with this LICENSE AGREEMENT (THE “AGREEMENT”)
Subject to this License Agreement and provided that you have a valid License Key, Xcellence-IT grants you the revocable, non-exclusive, non-transferable, and non-sublicensable license to use the Software as per the license terms agreed in this License Agreement.
For the Software, licensed under this Enterprise License, Xcellence-IT hereby grants to Licensee and Licensee hereby accepts, a non-transferable, nonsublicensable, perpetual, exclusive license (the “Enterprise License”) to install, use this Software and any accompanying documentation only on a single web site domain and by strictly adhering to the terms and conditions set forth in this Agreement.
1.2 Authorized Users
Access to and use of the Software is limited to individuals, firms, organizations or entities that purchase a license (“Licensees”) and to individuals who (a) are employed by a Licensee, (b) access the Software solely for the benefit of such Licensee and (c) agree to be bound by all of these terms and conditions to the same extent that such Licensee is bound (collectively, “Authorized Users”).
By accessing or using the Software, you represent and warrant that you are a Licensee or an Authorized User and that you agree to these terms and conditions. All references to “you” mean either a Licensee or an Authorized User.
1.3 Access to Source Code
The Enterprise License grants you the access to the Source Code of the certain version of the Software except the part of the Software that implements Licensing mechanism.
1.4 Right to Modify Software
The Enterprise License grants you the right to modify certain part of Source Code except the part of the Software that implements Licensing mechanism, to modify software behavior as per your custom requirements.
The modified source code must only be used for the single licensed website domain.
1.5 New Release and Updates
You are entitled to use new releases of and updates to the Software only (i) if you elect to purchase a Support and Maintenance subscription and (ii) while your Support and Maintenance subscription remains active and in good standing. A Support and Maintenance subscription is optional and, subject to the terms of this License Agreement, You may use the Software without such a subscription and/or continue to use the Software after such subscription has expired. Any new releases of and updates to the Software you receive and are entitled to use pursuant to this Section shall be included in the definition of “Software” hereunder and shall be governed by the terms of this License Agreement unless such new release or update is accompanied by a separate license, in which case the terms of that license will govern the Software and/or such new release or update. You may obtain new releases of and/or updates to the Software only from Xcellence-IT or other sources authorized by Xcellence-IT.
2. Conditions and Limitations
2.1 Unauthorized Use
You may not place the Software, modified or unmodified, on a diskette, CD, website or any other medium and offer them for redistribution or resale of any kind without prior written consent from Xcellence-IT.
Creating any Derivative Works of the Software, or disclosing the source codes of the Software in any way, porting of the Software to other software platforms and systems without prior written approval from Xcellence-IT is prohibited.
In the case when the Software being purchased or downloaded by You from this web site, contains several standalone software parts or libraries, which work together to perform the intended function of the Software, You may not use these constituent software parts individually as standalone software pieces out of the whole of the purchased Software. Such constituent parts may include plugins, templates, extensions, software libraries, code functions or any other software entity which can work independently as a software system.
You may not sub-license, assign, or transfer this license to anyone else without prior written consent from Xcellence-IT.
You may not claim intellectual or exclusive ownership to any of the Software, modified or unmodified. The Software is property of Xcellence-IT. The Software is provided “as is” without warranty of any kind, either expressed or implied. In no event shall Xcellence-IT or our juridical person be liable for any damages including, but not limited to, direct, indirect, special, incidental or consequential damages or other losses arising out of the use of or inability to use the Software.
2.4 Copyright Notice
You may not remove, modify or alter Copyright Notices placed in the Source Code or other files of the Software.
2.5 Illegal Use
The Software may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. We will be the sole arbiters as to what constitutes a violation of this provision, provided that all such determinations shall be made reasonably in good faith based on applicable law, regulation and the accepted norms of the Internet community.
2.6 No Use By nopCommerce software vendors
Vendors of nopCommerce products, which include themes, templates, extensions or any other nopCommerce software are not allowed to purchase, download or use the Software without the express permission of Xcellence-IT. If you or the company you represent is a nopCommerce software vendor, you may not purchase a license for or use the software unless you contact Xcellence-IT directly and obtain permission. This does not apply to companies, who provide services based on nopCommerce.
2.7 Number of Installations
You are permitted only (i) one live, accessible installation of the Software and (ii) one private installation that is available for use only by Customer for internal testing purposes. Each live installation of the Software can be accessed through one Domain Name only. If access to the installation is required through multiple Domain Names, additional license(s) are required.
2.8 No Reselling or Sub-Licensing
You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise commercially exploit or make the Software available to any third party.
2.9 No Unlawful Use or Objectionable Content
You shall not use the Software in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Software and its components or infringes on the rights of another party. You shall not modify, adapt or hack any protected (encrypted or compiled) parts of the Software, or otherwise attempt to gain unauthorized access to those parts or its related systems or networks. You undertake not to promote any material that is unlawful, threatening, abusive, malicious, defamatory, false, materially inaccurate, or otherwise objectionable. You will not reproduce, publish, or distribute content in connection with the Software that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right. Xcellence-IT offers no assurance that your use of the Software under the terms of the this agreement will not violate any law or regulation applicable to You.
2.10 Responsibility for Use
You must only install the Software and make the Software available for use on systems owned, leased, or controlled by You in such a way that You can guarantee compliance with the terms of this Agreement. You assume all responsibility for any and all use of the Software, including but not limited to content and media that is created, uploaded to, downloaded from, transmitted and edited using the Software. You are responsible for any accesses made to the Software.
With respect to any use of the Software, You shall keep the attribution and hyperlink to Xcellence-IT and its website intact unless a license (at a cost) is obtained from Xcellence-IT to do so.
2.12 Software Backup
You may make one copy the Software for back-up and archival purposes, provided that the original and the copy are kept in Your possession and that Your installation and use of the Software does not exceed that allowed in this Agreement.
2.13 Data Backups
You assume all responsibility for all of Your Data and any backups thereof.
2.14 Handling Software
You shall not (a) reverse engineer, decompile, disassemble, deobfuscate or decrypt any portion of compiled and/or source code, in whole or in part, or otherwise attempt to discover the source code to the software used in the Software, (b) remove or modify licensing mechanism used in the Software or (e) make any attempt to circumvent any parts of the Software. You obtain no rights to the Software except for the limited rights to use and modify the Software expressly granted by the Agreement.
2.15 Limited License
You acknowledge and agree that (i) the Software is the property of Xcellence-IT and is licensed and not sold to You under the Agreement and (ii) the Software uses, embodies, and contains confidential and proprietary information and technology of Xcellence-IT and/or its licensors and embodies trade secrets and intellectual property of Xcellence-IT and/or its licensors protected under copyright and other laws, and by international treaty provisions (collectively referred to as “Xcellence-IT’s Intellectual Property Rights”). Your rights in the Software are strictly limited to those license rights expressly granted under Section 1.1 above, and Xcellence-IT retains all rights not expressly granted herein. Without limiting the foregoing, Xcellence-IT and/or its licensors retain all right, title, and interest in and to Xcellence-IT’s Intellectual Property Rights, including but not limited to: (i) all software code (source and object), functionality, technology, system or network architecture and user interfaces and all modifications thereto and (ii) all trade secrets, patents, copyrights and other intellectual property rights with respect to the Software. You further acknowledge that there are no implied licenses granted under the Agreement.
3. Software Updates
You are entitled to free updates of the New Releases of the Software for one year after the date of purchasing the Software.
4. Software Support and Maintenance Subscription
Xcellence-IT offers the Software “as is” and with no implied meaning that they will function exactly as you would like or will be compatible with all 3rd party themes, plugins, extensions or components. We do not offer support via email or otherwise support nopCommerce or other nopCommerce plugins we have not developed.
The Enterprise Licensee grants you the one year limited Support and Maintenance Subscription from the date of your purchase of the Software. After one year a new Support and Maintenance Subscription will need to be purchased in order to continue receiving support and new releases.
The Support and Maintenance Subscription entitles you to receive support from the Xcellence-IT or its Partners on (i) Bug Fixes, (ii) General questions about Configuration, installation and upgrade questions, optimization, etc, (iii) General questions about best hardware configurations, (iv) Basic development and customization questions, (v) Architectural advising and (vi) Custom code review.
The Support and Maintenance Subscription does not include support for (i) third-party modules, plugins and themes, (ii) Custom components and modules, and (iii) Complex Customization query.
Support is offered only to a valid license holder. License holders cannot distribute, freely giveaway, or resell their license. The license is only transferable by contacting us and requesting an official transfer of the license to a new owner. The license is intended to be used on the license holders web site(s). Client site usage is permitted in situations where the license holder maintains an ongoing relationship with the client as a consultant. Only the license holder is permitted to request support or access support resources.
License holders are not permitted to re-post support forum content or documentation on any external websites, social media outlets, etc. Posting screen captures of support content is also prohibited. Violation will be grounds for immediate termination of the license and all access to support content and product updates will be discontinued.
Xcellence-IT will provide an initial response (but not necessarily a resolution) to each support inquiry within twenty four (24) hours of receipt of such support inquiry during the business day, and will use reasonable efforts to resolve the issue generating the inquiry as soon as is reasonably possible.
All support inquiries shall only be related to the Software license holder has purchased.
5. Refund Policy
As we are offering non-tangible digital goods, moreover the Enterprise License includes Source Code Access and therefore we do not issue refunds after the purchase has been made.
We encourage you to use the Free Trial before purchasing an Enterprise License.
6. Term and Termination
This Agreement and the Licenses granted hereunder shall last as long as you use the Software in compliance with this Agreement.
Xcellence-IT may terminate this Agreement and the Licenses granted hereunder if you fail to comply with any of the terms and conditions of this Agreement. Upon termination of this Agreement for any reason the License granted to you hereunder shall terminate automatically and you must immediately cease use of the Software and destroy all copies of the Software in your possession. Unless otherwise prohibited by law and without prejudice to Xcellence-IT’s other rights or remedies, and without limiting the generality of the foregoing, Xcellence-IT shall have the right to terminate this Agreement and the License granted hereunder immediately in the event that: (i) you breach any of the License restrictions set forth herein, or engage in, or participate with any third party in the unauthorized manufacture, duplication, reverse-engineering, distribution of any software of Xcellence-IT (including the Software), or engage in any activities involving the Software that are prohibited by law; or (ii) you engage in the unauthorized use of any software of Xcellence-IT (including the Software) or infringe upon any intellectual property right of Xcellence-IT.
7. Product Discontinuance
Xcellence-IT reserves the right to discontinue at any time any component of the Software, whether or not it is offered as a standalone product or solely as a component of the Software. However, to the extent Xcellence-IT is obligated to provide support for the Software in accordance with the terms set forth in this Agreement, Xcellence-IT will provide support for all such discontinued components for a period of six (6) months after the date of discontinuance.
We or our affiliate is the sole owner of the Xcellence-IT and nopAccelerate trademarks. You may not use any Xcellence-IT trademark without our prior written consent, which we may withhold in our discretion.
You grant us the right to include your company’s name as a customer on our website and other advertising and promotional materials. Within thirty business days after your written request, we will remove your company’s name from the Xcellence-IT or nopAccelerate website and will cease to include the name in our other advertising and promotional materials.
You acknowledge that the Software and its documentation are protected by copyright and other laws and that we are the sole owner of all rights in and to the Software and its documentation. You have no rights in the Software or its documentation except as set forth in these terms and conditions and in any other written agreement you may have with us.
The Software uses certain open source libraries listed in the documentation. These libraries are licensed under one of the licenses from the MIT, GPL, nopCommerce Public License, Microsoft Public License or Apache License. (See http://github.com/jquery/jquery/blob/master/MIT-LICENSE.txt, http://opensource.org/licenses/GPL-3.0, http://www.nopcommerce.com/licensev3.aspx, http://opensource.org/licenses/MS-PL, http://www.apache.org/licenses/LICENSE-2.0) The Software is not a derivative work of any of these libraries.
We do not warrant the accuracy of the Software. We deliver the Software on an “as is” basis. Any reliance upon the Software is at your own risk. We are not responsible for errors, inaccuracies or omissions in the Software, nor for any consequence of your use of or reliance upon the Software.
12. Limited Warranty
This limited warranty applied only to the Software licensed under the Download License or the Subscription License. This limited warranty does not apply to the Software licensed under the Free License or the Trial License.
Xcellence-IT warrants solely that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days after the date on which you purchase the Software.
Our Software is guaranteed to function on a clean installation of nopCommerce & Apache Solr. We do not guarantee it will function with all 3rd party themes, plugins, extensions, components or with all web browsers. We are not responsible for any compatibility conflicts that may occur. It is our policy to support our Software as best we can and we will provide support for 3rd party themes, plugins, extensions or components conflicts at our discretion or as time allows. We are not responsible for any data loss that may occur as a result of installing this plugin.
Xcellence-IT does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Licensee’s failure to follow operating instructions, (iii) Licensee’s negligence or improper use of the Software, (iv) modifications to the Software by any person or entity other than Xcellence-IT. In the event of a breach of the foregoing express warranty, Licensee’s sole and exclusive remedy and Xcellence-IT’s sole and exclusive obligation, is repair or replacement of the defective Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and Xcellence-IT’s maximum liability shall be a refund of the paid purchase price for the defective Software only. This limited warranty is only valid if Xcellence-IT receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12, Xcellence-IT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Xcellence-IT be liable for any indirect, special, incidental, or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Xcellence-IT’s entire liability regarding your use of the Software under this Agreement shall not exceed in the aggregate the sum of the license fees Licensee paid to Xcellence-IT for the Software giving rise to such damages, notwithstanding any failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not be applicable. Xcellence-IT and its licensors are not responsible for any liability arising out of content provided by Licensee or a third party that is accessed through the Software, on a website built using the Software, any material linked through such content or such website, any add-on modules you develop using the Software. The extent of Xcellence-IT’s liability for the limited warranty section shall be as set forth therein.
You agree to indemnify, hold harmless, and defend Xcellence-IT, its licensors and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney’s fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from (a) your use or misuse of the Software or from the websites that you develop and administer through the use of the Software (but excluding such Claims that are solely attributable to infringement of third party intellectual property rights solely as a result of your authorized use of the Software), or (b) the add-on modules you develop using the Software.
No delay or failure to exercise any right or remedy provided for in this Agreement will be deemed to be a waiver.
If any provision of this Agreement is held invalid or unenforceable, for any reason, by any arbitrator, court or governmental agency, department, body or tribunal, the remaining provisions will remain in effect.
17.1 Delivery of the Software
After we have successfully processed your payment, you will receive an email with the download link. This may take up to 1 hour to arrive, but usually happens within minutes of placing the order. If you do not receive an email after this time period, please contact us. You may then login to our support website to receive support, if you use the email address you used to purchase the plugin you will have instant access to all support related material.
17.2 Site Content
All site content, including imagery and documentation that is published on this site and support portal is the property of Xcellence-IT. Any replicated site content must be authorized in advanced. Content from this site shall not be used or exploited for commercial or non-commercial purposes without the prior written consent of Xcellence-IT.
17.3 Transactional Emails
Xcellence-IT may on occasion send you email notifications related to your license. These transactional emails may include notification of licensing changes, changes to our terms and conditions, license expiration notices and other transactional emails related to your purchase of the Software.
17.4 Price Changes
Xcellence-IT reserves the right, at any time, to modify or discontinue, temporarily or permanently a license with or without notice. Prices of all products are subject to change. Notice of price changes will be made on the site.
18. Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of India.
Any party bringing a legal action or proceeding against the other party arising out of or relating to this Agreement or the transactions it contemplates shall bring the legal action or proceeding in Surat, India. Each party consents to the exclusive jurisdiction of such courts in any such action or proceeding.
If any current or future provision of this agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not be affected.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE, BY LOADING OR RUNNING THE SOFTWARE, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN XCELLENCE-IT AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.
For further Information about our licensing policies or products, contact us at:
Address: Xcellence-IT, 220, Near 21st Century Building, Singauri Wadi, Ring Road, Surat 395002 INDIA
E-mail: [email protected]