Fuzio Startup License Agreement
Version 1.0
This is a legal agreement (“Agreement”) between You (either an individual or an entity) “You” or “Licensee”, and Jiku Technology (Shanghai) Co., Ltd. (“Jiku Technology”), which maintains its principal place of business at Room 7-1788, No. 500 Loushanguan Road, Changning District, Shanghai, China.
IMPORTANT [PLEASE READ CAREFULLY]: BY INSTALLING, USING OR COPYING THE SOFTWARE OR ANY RELATED DOCUMENTATION (“SOFTWARE”) YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE SOFTWARE.
JIKU TECHNOLOGY MAY UPDATE THIS AGREEMENT WITHOUT ANY PENALTY TO JIKU TECHNOLOGY. THE AGREEMENT MODIFICATION DATE WILL BE REFLECTED AS “LAST UPDATED” AT THE TOP OF THIS PAGE. JIKU TECHNOLOGY SHALL NOT BE RESPONSIBLE TO NOTIFY YOU ON ANY UPDATES, BY CONTINUING TO USE THE SOFTWARE, YOU AGREE TO BE BOUND BY THE UPDATED VERSION OF THE AGREEMENT.
Definitions
a) “Software” means the software product owned and supplied by Jiku Technology in binary form and corresponding documentation, associated media, printed materials, and online or electronic documentation.
b) “Evaluation License Key” means a string with a combination of letters and numbers that allows using the Software for evaluation purposes for a limited period of time which shall commence on the day of Evaluation License acquisition, and terminate pursuant to the provisions defined by the Section 3. “Evaluation License Grant” of this Agreement.
c) “Commercial License Key” means a string with a combination of letters and numbers that allows You to integrate the Software into programs that You create and distribute the Software as part of Your programs according to the terms of this Agreement.
d) “Software Update(s)” means any new version(s) of the Software that are created to deliver bug fixes, new features, functionality extensions and other improvements and/or changes.
e) “Open-Source Component(s)” for the purposes of this Agreement shall mean any software, whose source code is publicly available for use, modification and distribution.
Ownership and License
2.1. The Software is owned by Jiku Technology, copyrighted and protected by copyright laws and international treaty provisions. The Software is licensed, not sold. By installing or using the Software You will not acquire any rights to the Software except as expressly set forth in this Agreement. All rights not expressly granted herein are reserved by Jiku Technology.
2.2. The rights to the Open Source Components used by the Software are property of their respective copyright owners.
Evaluation License Grant
Subject to the terms and conditions of this Agreement, Jiku Technology hereby grants You a non-exclusive, non-transferable right to use one copy of the specified version of the Software and the Documentation for the sole purpose of evaluation during the period specified by Jiku Technology during delivering the Evaluation License Key (Evaluation Period), and create a copy of the Software for backup purposes.
Startup License Grant
4.1. General License Grant. Subject to the payment of the applicable license fees and to the terms and conditions of this Agreement, Jiku Technology hereby grants to You a non-exclusive, non-transferable perpetual license to (i) use the Software and Documentation including all the Software Updates pertaining to You per the Section 6. “Support and Updates” of this Agreement for commercial needs, (ii) to reproduce and distribute the Software in executable form as part of the programs that You create using the Software without additional distribution fees (“Commercial License”).
4.2. The Commercial License provided to You is Startup, which means it can only be used by You in Your startup project and cannot be transferred to any third party. For purposes of this Agreement, “Startup” shall mean one software product created by You, any future versions or derivative works based on that software product.
4.3. You acknowledge that a Startup License is bound to a specific Startup at the time of issue, and thereafter may not be used for or in connection with any other Startup or project.
General License Restrictions
5.1. General License Restrictions. You may NOT: a) modify, adapt, alter, translate, decompile, reverse engineer, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation and except as may be required to replace a third party Open Source Component that is used in the Software; b) remove any proprietary notices or labels on the Software; c) disseminate or make available the Software on the Internet or to anyone personally separately from the program that You create, make more copies of the Software than it is necessary for the purposes of development of Your project (excluding a copy for backup purposes); d) rent, lease, or otherwise transfer rights to the Software.
5.2. Evaluation License Restrictions. In addition to the general restrictions denoted in the section 5.1., as the holder of the Evaluation License You may NOT: a) use the Software for commercial purposes; b) use the Software after expiration of the Evaluation Period.
Support and Updates
6.1. Together with a Commercial License Jiku Technology will provide You with a 12 months subscription for support and Software Updates (“Standard Support”). The Standard Support subscription shall expire on the first anniversary of the issue date of the Commercial License.
6.2. The Standard Support subscription includes:
a) the Software Updates;
b) ability to use designated support chat;
c) answering questions related to the functionality of the Software;
d) assistance in troubleshooting.
6.3. Licensee is entitled to submit up to 20 support requests during the active Standard Support subscription.
6.4. Renewal of Standard Support subscription is subject to a renewal fee to Jiku Technology.
6.5. Jiku Technology agrees to provide You with a free Standard Support during the valid Evaluation Period, as defined by the Section 3. “Evaluation License Grant.”
6.6. The Software Updates may include supplemental software code or related materials (including “Early-Access Preview” type builds) that are made available to You in the course of provision of the Standard Support. Such supplemental software code or related materials are to be considered part of the Software and are subject to the terms and conditions of this Agreement.
6.7. With respect to any technical information that You provide to Jiku Technology in order to enable Jiku Technology complete Your requests for Standard Support, You agree that such information may be used for Software support and development.
6.8. Following the first 12 months after the Effective Date of this Agreement Jiku Technology has the right to not renew the Standard Support for the Software versions that reached their end-of-life period, provided that Jiku Technology performs in full all the services in accordance with renewals previously purchased by You. Notwithstanding the foregoing, the Commercial License Grant shall remain in effect for all versions held by You.
Confidential Information
7.1. “Confidential Information” means: (i) the technology, ideas, know-how, documentation, processes, algorithms and trade secrets embodied in the Software and any Software Updates or such information embodied in or related to the program that You create; (ii) any software keys related to the Software or program You create, and (iii) any other information related to this Agreement, whether disclosed orally or in writing or magnetic media, that is identified as Confidential or with a similar legend at the time of such disclosure.
7.2. The receiving party (“Recipient”) shall protect the disclosing party’s ( “Discloser”) Confidential Information using the same degree of care which each party uses with respect to their own confidential information and shall not, directly, indirectly, or inadvertently: (i) use Confidential Information for purposes other than specified in this agreement; or (ii) disclose any Confidential Information to its subcontractors, agents, or other third party without the Discloser’s prior written consent, except for a limited number of employees on a need-to-know basis.
7.3. Confidential Information does not include any information that (i) is or becomes publicly known through lawful means; (ii) was rightfully in Recipient’s possession prior to receipt from the Discloser; (iii) is disclosed to Recipient without confidential or proprietary restriction by a third party who rightfully possesses the information; (iv) is independently developed by Recipient without the use of Confidential Information of the other party; or (v) is required to be disclosed pursuant to the order of a court or government agency, provided that the Recipient shall promptly provide written notice of such order to the Discloser to enable the Discloser to contest such order.
7.4. Each party’s obligations regarding the protection of Confidential Information shall survive any expiration or termination of the Agreement.
Payment Terms
All fees payable under this Agreement are non-refundable, except as specified in section 10.3. and 11.2 and are exclusive of any applicable taxes. In addition to other amounts payable under this Agreement, You shall pay any taxes, duties, fees, or withholding currently or subsequently imposed on Your use of the Software or the payment of license fees to Jiku Technology. If Jiku Technology is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Jiku Technology from You pursuant to this Agreement, You shall promptly reimburse Jiku Technology any such amounts. You shall not have the right to offset against or withhold the amount of any taxes from any amount invoiced to You by Jiku Technology except to the extent Licensee is required by applicable law.
Marketing
9.1. You agree to be identified as a customer of Jiku Technology and You agree that Jiku Technology may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in Jiku Technology’s marketing materials and websites. You hereby grant Jiku Technology a license to use Your name and any of Your trade names and trademarks solely in connection with the rights granted to Jiku Technology pursuant to this marketing section.
9.2. You and Jiku Technology may use the information about the business relationship pursuant to this Agreement for independent or joint marketing efforts. Examples of allowable marketing uses include creation and use of case studies, press releases, printed and online marketing materials, presentations, and business references.
Patent and Copyright Indemnity
10.1. Jiku Technology will defend and indemnify You for all costs (including reasonable attorneys fees) arising from a claim that Software furnished and used within the scope of this Agreement infringes a People’s Republic of China copyright or patent provided that: (i) You will notify Jiku Technology in writing within 30 calendar days of the claim however, failure to so notify will not relieve Jiku Technology of its obligations under this Section 10 to the extent there is no material prejudice caused by the delay; (ii) Jiku Technology has sole control of the defence and all related settlement negotiations, and ( iii) You will provide Jiku Technology with the assistance, information, and authority necessary to perform the above.
10.2. Jiku Technology will have no liability for any claim of infringement based on: (i) Open Source Components code contained within the Software; (ii) use of a superseded or altered release of the Software, except for such alteration(s) or modification(s) which have been made by Jiku Technology or under Jiku Technology’s direction, if such infringement would have been avoided by the use of a current, unaltered release of the Software that Jiku Technology provides to You, or (iii) the combination, operation, or use of Software furnished under this Agreement with programs or data not furnished by Jiku Technology, if such infringement would have been avoided by the use of the Software without such programs or data.
10.3. In the event the Software is held or believed by Jiku Technology to infringe any third-party rights, or Your use of the Software is enjoined, Jiku Technology will have the option, at its expense, to: (i) modify the Software to cause it to become non-infringing; (ii) obtain for You a license to continue using the Software; (iii) substitute the Software with other Software reasonably suitable to You, or (iv) if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Software and refund: a) the license fees paid for the Software, prorated over a one-year term from the license purchase date if any infringement occurs during the first year of Standard Support subscription; b) renewal fees paid for the subsequent Standard Support subscription renewal prorated over a one-year term from payment due date for any subsequent year.
10.4. Licensee Indemnity. You are responsible and shall indemnify Jiku Technology for any and all losses, liability, or damages arising out of third parties’ claims related to Your use of the Software, which infringes any applicable laws or third parties’ rights.
Disclaimer of Warranty
11.1. Jiku Technology warrants that during the period of 60 days (“Warranty Period”) from the Commercial License delivery: (i) the Software will substantially perform according to the then-current Documentation, (ii) Standard Support services provided hereunder will be performed in a workmanlike manner consistent with industry standards.
11.2. Licensee acknowledges and agrees that in case of non-conformance with the limited warranty per section 11.1, and subject to Licensee’s notification of Jiku Technology during the Warranty Period, Jiku Technology at its discretion and expense will either (i) repair or replace non-compliant Software; or (ii) arrange for a refund of the applicable fee paid by Licensee, and terminate this Agreement. Licensee acknowledges and agrees that this is Licensee’s sole remedy under this section.
11.3. Licensee acknowledges and agrees that the limited warranties referenced in this Section 11 do not apply if the Software (i) has been altered, except by Jiku Technology, (ii) has not been installed, operated, repaired, used or maintained in accordance with instructions made available by Jiku Technology, ( iii) is used within Evaluation Period.
11.4. EXCEPT TO THE LIMITED WARRANTIES ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JIKU TECHNOLOGY PROVIDES NO OTHER WARRANTIES OR CONDITIONS AND DISCLAIMS ANY OTHER EXPRESS OR IMPLIED, OR STATUTORY WARRANTIES AND CONDITIONS OF QUALITY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE ASSUMES THE RISK OF USE AND RESULTS OBTAINED FROM USE OF THE SOFTWARE.
Open-Source Components
12.1. Jiku Technology warrants that the Software is not using any Open Source Components: (i) to which any rights have to be additionally obtained in order for Licensee to exercise the right and licenses granted to Licensee herein, (ii) that would have the effect of requiring that the product that Licensee creates, or any portion thereof, be disclosed or distributed in source code form.
12.2. Jiku Technology and the Software are in full compliance with any Open-Source Components’ license to grant the license rights granted herein.
12.3. The terms and conditions governing the use of such Open-Source Components are in the Open-Source Software Licenses of the copyright owner and not this Agreement.
12.4. In case You modify the Software as allowed pursuant to the clause 5.1 a) Jiku Technology disclaims any warranty related to the Open-Source components, including warranties contained in 12.2. You shall be liable for any claims of third-party rights infringement caused by modification of the Software made by You in accordance with clause 5.1 a).
Limitation of Liability
13.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL JIKU TECHNOLOGY OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THIS SOFTWARE.
13.2. Nothing in this Agreement limits or excludes Jiku Technology or its suppliers liability for (i) personal injury or death resulting directly from Jiku Technology negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any liability that cannot be limited or excluded under applicable law.
13.3. The Parties agree that the total cumulative liability of Jiku Technology under or in connection with this Agreement shall not exceed the total fees actually paid by Licensee to Jiku Technology in the 12 months preceding the event giving rise to the claim.
Trademarks
This Agreement does not grant any rights to use the trademarks or trade names: “Jiku”, “Jiku Technology”, “Fuzio” or any other trademarks, service marks, logos or trade names belonging to Jiku Technology except as defined in the Section 9 “Marketing”. You agree not to use any marks belonging to Jiku Technology in or as part of the name of products based on the Software.
Termination
15.1. You may terminate this Agreement at any time by destroying all copies of the Software.
15.2. In event that You are in breach or default of any material obligations set forth in this Agreement, Jiku Technology may notify You specifying the breach and if You fail to correct the breach within 30 days, then Jiku Technology may terminate this Agreement. Upon such termination, You must destroy all copies of the Software.
15.3. Section 11. “Disclaimer of Warranty” and section 13. “Limitation of Liability” shall remain effective after the termination of this Agreement.
Governing Law
The parties agree that this Agreement is governed by the laws of People’s Republic of China and mutually consent to the exclusive jurisdiction and venue in the courts of Shanghai, People’s Republic of China, and expressly disclaim the applicability of the laws of any other state or jurisdiction to the maximum extent possible. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs, and other expenses, including the costs and fees incurred on appeal or in a bankruptcy or similar action.
Business Forms Terms and Conditions
Any terms and conditions in any purchase or sales order, invoice, quote, click wrap, or any other business form have no effect.
