Kentico CMS End user license agreement

This License Agreement is a legal agreement between you (either an individual or a single entity), hereinafter “the Licensee”, and the manufacturer

Kentico software s.r.o.
with its registered office in Brno, Kvetna 4, Post Code 603 00, Czech Republic
Company Identification Number 269 30 943
a Company incorporated in the Companies Register kept by the Regional Court in Brno, Section C, Insert 46072 (hereinafter “the Licensor”).

By installing and using the software, you agree to be bound by the terms of this license agreement. If you do not agree to the terms of this license agreement, do not install or use the software.

The Licensor and the Licensee entered into this

LICENSE AGREEMENT
under the provisions of Section 46 et seq. of Act No. 121/2000 Coll. on Copyright, Rights Related to Copyright and on the Amendment of Certain Laws (Copyright Act) as amended and under the provisions of Act No. 513/1991 Coll., the Commercial Code, as amended.


1. INITIAL PROVISIONS AND PURPOSE OF THE AGREEMENT

1.1. The Licensor exercises economic rights to copyright to the Kentico CMS (Content Management System) software allowing in particular creating web presentations (websites) and making changes to website content (website management). A detailed technical specification and a detailed description of the functions featured by Kentico CMS software are contained in the documentation to the software.

1.2. The Kentico CMS software under Article 1.1 hereof is hereinafter referred to as "the software".

1.3. The software, including its functions, may change while this Agreement is in effect, and specifically as a result of patches, updates or upgrades to the software. The individual versions of the software are designated with Arabic numerals in the x.y. format (such as version 1.2). With each upgrade of the software the earlier of the numerals changes while with patches or updates of the software the latter of the numerals changes. Software upgrades shall be provided to the licensee under the terms as set forth in Article 4 hereof.

1.4. The purpose hereof is to treat the legal relations between the Licensor and the Licensee upon the use of the software by the Licensee as well as any legal relations arising between the parties upon the provision of maintenance services connected with the use of the software by the Licensee (Article 4).



2. SUBJECT MATTER OF THE AGREEMENT

2.1. The Licensor hereby grants authorization to the Licensee to exercise the right to use the software (License) in the manner and scope as set forth in Article 3 hereof.

2.2. The Licensee hereby undertakes to pay to the Licensor for the provision of the License under Article 2.1 hereof the remuneration pursuant to Article 5.1 hereof.

2.3. The Licensor hereby undertakes to provide to the Licensee, insofar as set forth in Article 4.2 hereof, maintenance services connected with the provision of the License under Article 2.1 hereof, under the terms and within the scope as set forth in Article 4 hereof.

2.4. The Licensee hereby undertakes to pay to the Licensor, insofar as set forth in Article 4.2 hereof, remuneration for the provision of the maintenance services under Article 2.3 hereof, under the terms as set forth in Article 5.2 hereof.


3. MANNER AND SCOPE OF EXERCISING THE RIGHT TO USE THE SOFTWARE (LICENSE)

3.1. The Licensor grants a non-exclusive License to the Licensee.

3.2. The Licensee acquires the License through payment of the entire License Remuneration (Article 5.1).

3.3. The License is perpetual.

3.4. The Licensee has the right to use the software solely for the purpose ensuing from this Agreement and in accordance with the purpose of the software.

3.5. The Licensee has the right to use the software by making a reproduction (installation) thereof and communicating it to the public via the Internet (without any territorial limitation). The Licensee has the right to make a reproduction (or more such reproductions) as is needed for the loading and storage of the web presentation in computer memory – server, as well as for its display, run and transmission on the Internet, for the purpose of making the work available to the public, under the terms as set forth hereunder.

0 If the Licensee purchased 1 Web Site License the Licensee has the right to use the software for a single (1) web presentation(s) on a single physical server.

0 If the Licensee purchased 1 Server License the Licensee has the right to use the software on a single physical server for an unlimited number of web presentations.

0 If the Licensee purchased 1 Server License with Source Code the Licensee has the right to use the software on a single physical server for an unlimited number of web presentations, for which purpose the Licensor shall provide the source code for the software. It shall be possible to compile the source code so provided.

0 If the Licensee purchased 1 Unlimited License with Source Code, the Licensee has the right to use the software on an unlimited number of servers for an unlimited number of web presentations developed solely for the Licensee for which purpose the Licensor shall provide the source code for the software. It shall be possible to compile the source code so provided.

0 If the Licensee purchased 1 Cloud Hosting License for 1 Web Site the Licensee has the right to use the software for a single (1) web presentation(s) in a single cloud hosting environment.

0 If the Licensee purchased 1 Cloud Hosting License for Unlimited Web Sites the Licensee has the right to use the software for an unlimited number of web presentation(s) in a single cloud hosting environment.

0 If the Licensee purchased 1 Cloud Hosting License for Unlimited Web Sites with Source Code the Licensee has the right to use the software for an unlimited number of web presentation(s) in a single cloud hosting environment, for which purpose the Licensor shall provide the source code for the software. It shall be possible to compile the source code so provided.

For the purpose hereof, a web presentation shall be understood as a web presentation with a defined orientation running on a single domain and as a single site in Kentico CMS database.

If more alternative domain names (aliases) exist for a domain address and all direct to a single web presentation, the Licensee may request that the Licensor extends the authorization to the said additional domain names as well.

For the purpose hereof, cloud hosting shall be understood as a web site hosting service provided on a pay-per-use basis where the Software runs on an unspecified number of servers and the Licensee doesn`t pay for the number of server and the Licensee doesn`t have any control on the number of servers in use.

3.6. For the purpose of developing and testing the web presentation or for the purpose of the so-called staging server (i.e. until the web presentation containing the software is being communicated to the public), the Licensee may install the software on more computers owned by the Licensee. The limitation of the number of computers as set forth in Article 3.5 hereof shall not be applied to such cases.

3.7. The Licensee does not have the right to distribute the software reproductions under Articles 3.5 and 3.6 hereof. This does not affect the provision of Article 7 hereof.

3.8. The Licensee shall not be obliged to use the License, which however does not affect the Licensee’s duty to pay the License Remuneration.

3.9. Without the Licensor’s prior consent in writing, the Licensee may not grant in full or in part the authorization which is part of the License to a third person (to provide sublicenses). The Licensor may only allow other entities to use the web site presentation and edit web site content.

3.10. The Licensee may make back-up copies of the software if this is necessary for a proper use of the software. The Licensee must secure such copies with due care against misuse.

3.11. If the Licensee is provided with the Server License with Source Code under Article 3.5 hereof or with Unlimited License with Source Code or with Cloud Hosting License for Unlimited Web Sites with Source Code,

3.11.1. the Licensee has the right to change the software;

3.11.2. the Licensee shall secure the source code with due care against misuse;

3.11.3. if assigning the rights and duties from this Agreement to a third person under Article 7 hereof, the Licensee shall delete or destroy all the reproductions of the software’s source code available to the Licensee. The Licensee’s right to use the software in the compiled form for its own needs under the terms as set forth in Article 3.13 is not thereby affected.

3.12. If the Licensee is not granted the Server License with Source Code or the Unlimited License with Source Code under Article 3.5 hereof, the Licensee must not translate, process, alter or otherwise change the software in any way whatsoever, except for the code that is provided in the source form in the standard installation of the Software.

3.13. If the Licensee assigns the rights and duties from this Agreement to a third person under Article 7 hereof, the Licensee has the right to use the software even further, although solely for its own personal needs. Hence in such a case the Licensee does not have the right to use the software for communication to the public via the Internet (in particular for running web presentations).

3.14. Where patches or updates are made to the software by the Licensor, the License is also granted to the changed software.


4. MAINTENANCE SERVICES OF THE LICENSOR – SOFTWARE SUBSCRIPTION

4.1. In connection with the granting of the License under Article 2.1 hereof, the Licensee may also use for a defined period of time the maintenance services provided by the Licensor. This involves in particular the Licensor’s services consisting of the solving of problems in the Software regarding functioning and use including technical support via e-mail and phone. The e-mail address for the provision of maintenance services is support@kentico.com. The online form for the provision of maintenance services is: http://www.kentico.com/Support/Submit-support-issue.aspx.


4.2. The Licensee may use the maintenance services for the period of one (1) year from payment of the Maintenance Service Remuneration (Article 5.2). Upon every following payment of the Maintenance Service Remuneration in the amount as specified in the Licensor’s price list (Article 9.1) effective on the day of payment, the maintenance service provision period shall extend by one (1) additional year starting from the day following the date of expiration of the previous Maintenance Service period.

4.3. The maintenance services include the provision of all software upgrades prepared by the Licensor to the Licensee over the period of the Maintenance Service.


5. LICENSOR’S REMUNERATION

5.1. The Licensee hereby undertakes to pay the Licensor for the granting of the License under Article 2.1 hereof a one-off License Remuneration at the amount as specified in the Licensor’s current price list. The License Remuneration is payable within seven (7) days from the conclusion hereof on the Licensor’s account (hereinafter "the Licensor’s Account") or on accounts of the Licensor’s partners.

5.2. The license price includes free maintenance services for the first year from the purchase date of the license. If the Licensor chooses to extend the maintenance period by another year, the Licensor shall be entitled to remuneration in the amount as specified in the Licensor’s price list effective on the day of payment.

5.3. For the purpose of this Article, the following entities are the Licensor’s partners: Share It!, eVget, Kentico Software LLC.

5.4. The License Remuneration (Article 5.1) and the remuneration for the maintenance service provision (Article 5.2) are set on the basis of the Licensor’s price list (Article 9.1).

5.5. If this is usual in business contact, the Licensor or Licensor’s partner shall issue for the Licensee a proper tax receipt – invoice in connection with payments made on the basis hereof. The Licensor is a value-added tax payer (hereinafter "VAT"), and all the amounts given herein are quoted without VAT, which shall be calculated in accordance with the generally applicable legal regulations.


6. WITHDRAWAL FROM THE AGREEMENT

6.1. The Licensee has the right to withdraw from this Agreement without specifying a reason within thirty (30) days from the conclusion hereof. Notice of withdrawal from this Agreement shall be effective upon delivery to the Licensor.

6.2. By withdrawal from this Agreement, the Licensee’s entitlement to exercise the right to use the software hereunder ceases. The Licensor shall return to the Licensee the amount paid hereunder. The Licensee shall delete or destroy all reproductions of the software available to it, regardless of their form.

6.3. The Licensee does not have the right to withdraw from this Agreement if it has been granted a Server License or a Server License with Source Code or an Unlimited License with Source Code or Cloud Hosting License for Unlimited Web Sites or Cloud Hosting License for Unlimited Web Sites with Source Code.


7. LICENSE ASSIGNMENT

7.1. The Licensee may assign the rights and duties from this License to a third person.

7.2. The Licensee shall promptly inform the Licensor of an assignment of the rights and duties from this Agreement under Article 7.1 hereof. Along with informing of the assignment, the Licensee shall communicate to the Licensor the identification data of the entity to which the rights and duties from this Agreement have been assigned.

7.3. If the Licensee has been granted the Server License with Source Code or the Unlimited License with Source Code or Cloud Hosting License for Unlimited Web Sites with Source Code, the Licensee is entitled to grant to the third person the source code for the software upon the assignment of the rights and duties from this Agreement under Article 7.1, including the source code changed under Article 3.11.1 hereof.

7.4. If the License is assigned, the maintenance services are correspondingly assigned to the new Licensee. This does not transfer right to the original Licensee to the technical support needed for the provision of the services to the new Licensee extinct. The original Licensee and the new Licensee however acknowledge that the Licensor cannot provide technical support for specific system alterations.


8. SOFTWARE HANDOVER AND ACCEPTANCE

8.1. Reproduction of the software shall be granted to the Licensee after the Licensor receives the payment of the License Remuneration under Article 5.1 hereof through placement on the Licensor’s server. The Licensee shall be allowed to create a reproduction of the software from the said Licensor’s server.

8.2. Along with the software reproduction, the so-called license key required for using the software shall be provided to the Licensee after the Licensor receives payment of the remuneration under Article 5.1 hereof. Upon using the software as part of the development and testing of the web presentation or for the purpose of the so-called staging server in accordance with Article 3.6 hereof, the Licensee shall be provided more license keys as needed by the Licensor.

8.3. The first year maintenance services period starts on the day when the Licensor receives the payment of the renumeration under Article 5.1 and provides the said license keys to the Licensee.


9. OTHER RIGHTS AND DUTIES OF THE CONTRACTING PARTIES

9.1. The Licensor’s price list is published by the Licensor on its website placed at the URL http://www.kentico.com/buy.aspx.

9.2. Either contracting party is obliged to inform the other party of any facts that are or may be important for a proper performance hereunder.

9.3. The Licensor has the right to use the Licensee’s trading company, title or name for marketing purposes as a reference in all kinds of promotion materials (regardless of the form of such promotion materials or the form in which they are communicated), unless the Licensee informs the Licensor that the Licensee doesn’t wish to be used for so-called reference.

9.4. Changes to the software that occur when the software is made subject to patches or updates by the Licensor shall be provided to the Licensee.

9.5. If needed, the Licensee has the right to remove logos or other Licensor designations from the software and use the Licensee’s own logo and design.


10. LIABILITY FOR DEFECTS

10.1. The Licensee acknowledges that the software is not suitable for use in operations where major or serious damage may occur. The Licensee acknowledges that the Licensor is not liable for the results of the activity to which the software is used. The Licensee acknowledges that errors to the software may occur while the software is used.

10.2. The Licensee further acknowledges that a lacking function characteristic of the software that is not explicitly stated in the documentation to the software is not regarded as a defect.

10.3. The Licensee shall check the software for functionality and compliance with the software documentation without unnecessary delay after the software is handed over under Article 8 hereof.

10.4. The Licensee acknowledges that the Licensor is not liable for defects in the software as a result of unauthorized interventions in the software or its being used in contravention of the software documentation by the Licensee or third persons.

10.5. The Licensee further acknowledges that the Licensor is not liable for the functioning of the Licensee’s data network, functioning of a public data network, functioning of the Licensee’s hardware, the making of data back-ups by the Licensee, the condition of the Licensee’s other software and any interventions by third persons in the Licensee’s other software.

10.6. In the case of damage occurring on the Licensee’s part in connection with the Licensor’s liability for defects in the software, the contracting parties have agreed, taking into consideration the License granting terms, a limitation applicable to compensations for such potential damage suffered by the Licensee by limiting the damage compensation to USD 100 (in words: one hundred U.S. dollars) including lost profit. The contracting parties state with regard to all the circumstances accompanying the conclusion hereof that the aggregate foreseeable damage that may be suffered by the Licensee as a result of defects in the software may not exceed USD 100 (in words: one hundred U.S. dollars).


11. THIRD PERSONS’ COPYRIGHT

11.1. The Licensee acknowledges that the software contains items protected by copyright, the rightholders for which are third persons. This involves the following software:

11.1.1. skmMenu software, the (joint) authors of which are Scott Mitchell, Robert Vreeland, Henri Wiechers, Alan Downie, Stephen Paulin (http://skmmenu.com/menu/About/Contributors.aspx);

11.1.2. FCKEditor software, the (joint) authors of which are Frederico Caldeira Knabben, Sönke Freitag, Wim Lemmens, Simone Chiaretta, Jason Bucl, Takashi Yamaguchi, Jean-mat Grimaldi (http://www.fckeditor.net/developers/default.html);

11.1.3. Graphic works in electronic form from GUIIcons (http://www.guiicons.com). The Licensee acknowledges that graphic works in electronic form hereunder must not be used outside the software.

11.1.4. Graphic works in electronic form from INCORS GmbH – "IconExperience" icons (http://www.iconexperience.com). The Licensee acknowledges that graphic works in electronic form hereunder must not be used outside the software.

11.1.5. NetSpell software, the author of which is Paul Welter (http://www.loresoft.com/Applications/NetSpell/Download/default.aspx).

11.1.6. SharpZipLib software, the author of which is Ben Lowery (http://www.icsharpcode.net/OpenSource/SharpZipLib/Download.aspx).

11.1.7. Photos from http://www.istockphoto.com. These photos are only provided as sample content and in no case can they be used for public web sites unless you purchase the appropriate photo license.

11.1.8. GxMarker software, the author of which is Robert Aspinall (http://code.toeat.com/package/gxmarker).

11.1.9. LightBox software, the author of which is Lokesh Dhakar (http://www.huddletogether.com/projects/lightbox2/#support).

11.1.10. ZedGraph software, the author of which is J. Champion (http://zedgraph.org/wiki/index.php?title=ZedGraph_License).

11.1.11. Tooltips DHTML Library software, the author of which is Walter Zorn (http://www.walterzorn.com/tooltip/tooltip_e.htm).

11.1.12. This software uses the IP-to-Country Database provided by WebHosting.Info (http://www.webhosting.info), available from http://ip-to-country.webhosting.info.

11.1.13. Lucene.NET library (http://incubator.apache.org/lucene.net/).


11.2. The inclusion of the items protected by copyright in the software under Article 11.1 hereof is compliant with the license terms applicable to the items.

11.3. The Licensee acknowledges that the use of the items protected by copyright under Article 11.1 hereof is ruled by the license agreements with third persons (with the rightholders for such items).


12. PROTECTION OF INFORMATION

12.1. Unless the contracting parties explicitly agree otherwise in writing, all information that is or might be part of the Licensor’s trade secret shall be implicitly regarded as confidential, in particular the principles, methods and procedures on which the software is based (including the source code for the software) as well as any other technical know-how of the Licensor. The so-called license keys under Article 8.2 hereof are confidential information hereunder. Information obtained by the Licensee upon using the Licensor’s maintenance services (Article 4) is also confidential information.

12.2. The Licensee undertakes to maintain secrecy regarding confidential information. The Licensee undertakes to ensure that secrecy regarding confidential information shall also be maintained by its employees, agents, statutory bodies, members of the statutory bodies, and members of the Supervisory Board.

12.3. Without the Licensor’s written consent, the Licensee must not use the confidential information for itself or for third persons if this contravenes the Licensor’s interests. The Licensee undertakes to ensure that the duties under this Article are also maintained by its employees, agents, statutory bodies, members of the statutory bodies, members of the Supervisory Board, and partners.

12.4. The contracting parties undertake to maintain secrecy regarding any other facts the disclosure of which to third persons might in any way affect business interests or reputation of the other party or its business partners and clients. The contracting parties undertake to ensure that secrecy regarding these facts is also maintained by their employees, agents, statutory bodies, members of the statutory bodies, and members of the Supervisory Board.

12.5. Information under this Article that has become publicly known without the receiving party being responsible shall not be regarded as confidential.

12.6. The provisions of this Article (Article 12) are not affected by the termination of effectiveness hereof (for whatever reason) and its effectiveness shall not terminate earlier than five (5) years after the termination of effectiveness hereof.

13. FREE EDITION

13.1. If the Licensee uses Kentico CMS Free Edition, the following applies:
13.1.1. The Licensee does NOT undertake to pay to the Licensor any fee for the provision of the License stated in Article 2.2.
13.1.2. The Licensee is NOT entitled to receive maintenance services specified in Article 4.
13.1.3. The Licensor or Licensor’s partner shall NOT issue for the Licensee a proper tax receipt – invoice stated in Article 5.5.
13.1.4. The Licensee must display the “Powered by Kentico CMS” logo provided by Licensor on a visible area of each web site page managed by Kentico CMS software. The logo must be of the original size and it must link to the URL specified by the Licensor. Alternatively, the Licensee must use a visible text link "Powered by Kentico CMS" pointing to http://www.kentico.com instead of the logo image.
13.1.5. The Article 9.5 does NOT apply to the Free Edition and the Licensee must keep all logos and other Licensor’s designations in the software.
13.1.6. The foreseeable damage that may be suffered by the Licensee that uses Kentico CMS Free Edition stated in Article 10.6 may not exceed USD 0.01 (in words: one U.S. cent). The damage compensation stated in Article 10.6 is limited to USD 0.01 (in words: one U.S. cent) including lost profit for the Licensee that uses Kentico CMS Free Edition.
13.1.7. The Licensor has the right to use the Licensee’s trading company, title or name for marketing purposes as a reference in all kinds of promotion materials (regardless of the form of such promotion materials or the form in which they are communicated) even if the Licensee doesn`t approve or wish that.


14. CLOSING PROVISIONS

14.1. This Agreement as well as the rights and duties arisen on the basis hereof or in connection herewith are ruled by the Czech law, and specifically Act No. 121/2000 Coll. on Copyright, Rights Related to Copyright and on the Amendment of Certain Laws (Copyright Act) and Act No. 513/1991 Coll., the Commercial Code, as amended.

14.2. The court in Brno is competent to adjudicate disputes on the rights and duties arisen on the basis hereof or in connection herewith, and specifically the Municipal Court in Brno where the subject matter of the dispute falls within the competence of the district court of first instance, and the Regional Court in Brno where the subject matter of the dispute falls within the competence of the regional court of first instance.

14.3. If an invalidity reason only applies to a specific provision hereof, solely the provision concerned shall be invalid unless its nature, content or the circumstances under which it has been agreed upon imply that it cannot be separated from the remaining content of the Agreement.

14.4. This Agreement becomes effective upon its execution.

14.5. Through a potential dissolution of the Licensor the rights and duties from this Agreement transfer to the Licensor’s legal successor. Losing the statutory qualification for practicing business on the Licensor’s part does not affect the License granted hereunder.

(License agreement version 4.1)