From a9611773490173d503b695ff84da93e3f0d67216 Mon Sep 17 00:00:00 2001 From: David Denton Date: Fri, 10 Jan 2025 18:35:59 +0000 Subject: [PATCH] Updates --- src/website/content/commercial-terms.md | 65 ++++++++++++++++++++++--- 1 file changed, 57 insertions(+), 8 deletions(-) diff --git a/src/website/content/commercial-terms.md b/src/website/content/commercial-terms.md index affb3c2..05f45c5 100644 --- a/src/website/content/commercial-terms.md +++ b/src/website/content/commercial-terms.md @@ -23,17 +23,66 @@ The Software and Other http4k Materials are collectively referred to herein as t "Host" means each individual machine (real or virtual, including servers, containers, workstations, smartphones, POS, industrial controls, gateways, sensors, IoT endpoints, or any other physical or simulated computing interface or machine) of Customer and/or its Affiliates (including, without limitation, employees, agents or consultants thereof) with access to Licensed Materials hereunder; provided that, for development purposes only, a Host license shall operate as a floating developer license that permits installation of the Licensed Materials on any number of Developer Workstations, provided that the Licensed Materials may only be accessed and used by one unnamed developer at a time per license. +1.1.1 Customer Modifications. Customer may modify the Licensed Materials only for its own internal business use and subject to the following conditions: +* All modifications must comply with the terms of this Agreement +* Customer retains ownership of any original modifications they create +* http4k retains ownership of the underlying Licensed Materials and any derivative works +* Customer agrees that http4k has no support obligations for modified code unless otherwise agreed in the Quote +* Customer agrees to indemnify and hold http4k harmless from any claims arising from Customer modifications + 1.2 Subject to the terms hereof, http4k will provide support to Customer for the Licensed Materials according to the support level, channels, response times and other terms specified in Customer's commercial agreement with http4k ("Quote"). Notwithstanding anything to the contrary, in the event that Customer does not reasonably comply with written specifications or instructions from http4k's service engineers regarding any support issue or request (including without limitation, failure to make backups of Customer's Licensed Materials) (each, a "Support Issue"), http4k may terminate its support obligations to Customer with respect to such Support Issue upon fifteen (15) days' written notice if Customer does not cure such noncompliance within the notice period. -1.2.1 Support is provided in English only. +1.2.1 Customer may request support consisting of advice, consultancy and help concerning the use and operation of the Licensed Materials. http4k will provide these support services through channels specified in the Quote. + +1.2.2 Defects will be classified by http4k support staff as follows: +* Critical - Defect critical to Customer's business, requiring a solution as quickly as possible +* Major - Defect affecting a specific area of functionality +* Minor - Defect with negligible, cosmetic effects, which does not affect the usability of the Software significantly + +1.2.3 http4k will use reasonable endeavours to remedy Defects by: +* Delivering a new Release; or +* Providing the Customer with a suitable Workaround + +1.2.4 Resolution of defects will be scheduled as follows: +* Critical - via priority release as soon as practically possible, typically delivered as a Patch Release +* Major - included in next standard release (Major, Minor, or Patch Release) +* Minor - included in future Major or Minor Release (unscheduled) + +1.2.5 Unless arranged otherwise in the quote, support is provided during UK business working days (Monday to Friday, 9AM-5PM UK time), excluding public holidays. Alternative support hours may be arranged as specified in the Quote. + +1.2.6 Investigations into support tickets that are found to be caused by third party software defects or non-observance of operating instructions will be charged at the standard hourly rate specified in the Quote. + +1.2.7 Support is provided in English only. + +1.3 Training and Consultancy + +1.3.1 Training courses are delivered for up to 10 persons per day. For in-person training, travel and associated costs are not included in the Training fee. + +1.3.2 Consultancy activities are arranged on an as-needed basis. + +1.3.3 Commercial subscribers are eligible for discounted rates on: +* General consultancy services +* Bespoke feature development +* In-person and online training courses ## 2. RESTRICTIONS AND RESPONSIBILITIES -2.1 Except as expressly authorized in Section 1.1, Customer will not, and will not permit any third party to: use the Licensed Materials for any purpose other than as specifically authorized in Section 1, or in such a manner that would enable any unlicensed person to access the Licensed Materials; exceed the number of Hosts specified in the Quote or for which Customer has paid http4k, including but not limited to exceeding the number of concurrent developer licenses when using floating development licenses; use the Licensed Materials or any other http4k software for timesharing or service bureau purposes or for any purpose other than its and its Affiliates’ own internal use (including without limitation, sublicensing, distributing, selling, reselling any of the foregoing); except as expressly permitted herein; use the Licensed Materials in connection with any high risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); use the Licensed Materials or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or use the Licensed Materials in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any Host or User authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of http4k, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs). + +2.1 Except as expressly authorized in Sections 1.1 and 1.1.1, Customer will not, and will not permit any third party to: +(a) use the Licensed Materials for any purpose other than as specifically authorized in Section 1, or in such a manner that would enable any unlicensed person to access the Licensed Materials; +(b) copy, adapt, modify, reverse engineer, decompile, reassemble or disassemble the Software in whole or in part except to the extent expressly permitted by applicable law; +(c) make available the Software to third parties, unless such third parties are using or operating the Software solely on behalf of the Customer; +(d) exceed the number of Hosts specified in the Quote or for which Customer has paid http4k, including but not limited to exceeding the number of concurrent developer licenses when using floating development licenses; +(e) use the Licensed Materials or any other http4k software for timesharing or service bureau purposes or for any purpose other than its and its Affiliates' own internal use; +(f) use the Licensed Materials in connection with any high risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); +(g) use the Licensed Materials or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); +(h) use the Licensed Materials in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any Host or User authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of http4k, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or "spam" message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs). 2.2 Customer will cooperate with http4k in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as http4k may reasonably request. Customer will also cooperate with http4k in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Licensed Materials. Customer shall maintain during the term of this Agreement and through the end of the third year after the date on which the final payment is made under this Agreement, books, records, contracts and accounts relating to the payments due http4k under this Agreement (collectively, the “Customer Records”). http4k may, at its sole expense, upon 30 days’ prior written notice to Customer and during Customer’s normal business hours and subject to industry-standard confidentiality obligations, hire an independent third party auditor to audit the Customer Records only to verify the amounts payable under this Agreement. If an audit reveals underpayment, then Customer shall promptly pay the deficiency to http4k plus late fees pursuant to Section 5.2. http4k shall bear the cost of an audit unless the audit reveals underpayment by more than 5% for the audited period, in which case Customer shall promptly pay http4k for the reasonable costs of the audit. 2.3 Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and User passwords and credentials for Hosts like e) and files, and for all uses of Customer account with or without Customer’s knowledge or consent. +2.4 Customer agrees to implement reasonable controls to ensure that any modifications made under Section 1.1.1 are developed and deployed following secure software development practices, and to maintain appropriate records of all modifications made to the Licensed Materials. + ## 3. CONFIDENTIALITY 3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Licensed Materials are http4k Proprietary Information. @@ -44,7 +93,7 @@ The Software and Other http4k Materials are collectively referred to herein as t 3.4 Both parties will have the right to disclose the existence of the relationship between the parties, but not the terms and conditions of this Agreement, unless such disclosure of the Agreement terms is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers. ## 4. INTELLECTUAL PROPERTY RIGHTS -4.1 Except as expressly set forth herein, http4k alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Licensed Materials and any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Customer, its Affiliates or any third party relating to the Licensed Materials, which are hereby assigned to http4k. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Licensed Materials, or any intellectual property rights. +4.1 Except as expressly set forth herein, http4k alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Licensed Materials, while Customer shall retain all rights to Customer modifications made in accordance with Section 1.1.1. Any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Customer, its Affiliates or any third party relating to the Licensed Materials (excluding Customer modifications made under Section 1.1.1), are hereby assigned to http4k. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Licensed Materials, or any intellectual property rights. 4.2 Customer shall not remove, alter or obscure any of http4k’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of http4k’s (or its licensors’) ownership or contribution from the Licensed Materials. Additionally, Customer agrees to reproduce and include http4k’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Materials, or on any portion thereof, including reproduction of the copyright notice. Notwithstanding anything to the contrary herein, certain components of the Licensed Materials, including without limitation, any component of the Licensed Materials distributed by http4k as part of the http4k Community Edition, are licensed by third parties pursuant to the terms of certain third party licenses described in such source code annotations. @@ -68,14 +117,14 @@ The Software and Other http4k Materials are collectively referred to herein as t 6.4 Customer’s rights to the Licensed Materials, and any licenses granted hereunder, shall terminate upon any termination of this Agreement. In the event that Customer terminates this Agreement pursuant to the second sentence of Section 6.2 above, http4k will refund to Customer a pro-rated portion of pre-paid Fees for Services not actually received by Customer as of the date of such termination. The following Sections will survive any termination of this Agreement: 2 through 6 (except for Section 4.3), and 8 through 11. -## 7. WARRANTY; CUSTOMER SOFTWARE SECURITY -http4k represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) it will not knowingly include, in any http4k software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, http4k fails to comply with the warranty in this Section, Customer may promptly notify http4k in writing of any such noncompliance. http4k will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance. +### 7. WARRANTY; CUSTOMER SOFTWARE SECURITY + http4k represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) it will not knowingly include, in any http4k software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. This warranty applies only to unmodified Licensed Materials as provided by http4k and expressly excludes any Customer modifications made under Section 1.1.1. If, at any time, http4k fails to comply with the warranty in this Section, Customer may promptly notify http4k in writing of any such noncompliance. http4k will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance. -## 8. WARRANTY DISCLAIMER -EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED MATERIALS, SOFTWARE AND HTTP4K PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. HTTP4K AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. +### 8. WARRANTY DISCLAIMER + EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED MATERIALS, SOFTWARE AND HTTP4K PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. HTTP4K AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. HTTP4K SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO CUSTOMER MODIFICATIONS MADE UNDER SECTION 1.1.1. ## 9. LIMITATION OF LIABILITY -EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO HTTP4K HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. +EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE LICENSED MATERIALS (INCLUDING ANY CUSTOMER MODIFICATIONS MADE UNDER SECTION 1.1.1) OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO HTTP4K HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. HTTP4K SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS ARISING FROM OR RELATED TO CUSTOMER MODIFICATIONS MADE UNDER SECTION 1.1.1. ## 10. U.S. GOVERNMENT MATTERS Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Licensed Materials or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Licensed Materials is representation and warranty that neither the User nor Host is located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by http4k are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.