Fabric Engine Software License Agreement

ATTENTION:  THE SOFTWARE PROVIDED UNDER THIS SOFTWARE LICENSE AGREEMENT (THE “Agreement”) IS BEING LICENSED TO YOU BY FABRIC SOFTWARE INC. (“Fabric Software”) AND IS NOT BEING SOLD. THIS SOFTWARE IS PROVIDED UNDER THE FOLLOWING AGREEMENT THAT SPECIFIES WHAT YOU MAY DO WITH THE SOFTWARE AND CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES.  

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU, THE INDIVIDUAL OR ENTITY THAT DOWNLOADED OR INSTALLED THE SOFTWARE (“Customer” OR “You”) AND FABRIC SOFTWARE BY CLICKING THE “I ACCEPT THE TERMS OF THIS LICENSE” BUTTON DURING SOFTWARE INSTALLATION OR BY USING THE SOFTWARE PROVIDED WITH THIS AGREEMENT, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT INSTALL OR USE THE SOFTWARE, AND YOU SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE THAT YOU DOWNLOADED OR COPIED. 

IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER, AND (III) IN THE CASE OF AN EDUCATIONAL LICENSE, ALL USE OF THE SOFTWARE UNDER THIS AGREEMENT SHALL BE RESTRICTED SOLELY TO USE BY AN EDUCATIONAL INSTITUTION AS DEFINED HEREIN.

 

DEFINED TERMS

 In this Agreement the following terms shall have the following meanings:

“Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes that Fabric Software generally makes available to licensees of the Software.

“Educational Institution” means any government-accredited educational or academic institution, including but not limited to any primary or secondary school, vocational school, college or university. Specifically excluded, without limitation, are training centers and non-accredited educational institutions.

Headless Software” means an instance of the Software that is only capable of processing data submitted by the user prior to execution of the Software.

Interactive Software” means an instance of the Software that is capable of processing data that is submitted by the user: (i) prior to execution of the Software; and/or (ii) while the Software is operating.

“Internal Use” means the use by You of the Software within Your organization: (i) for internal purposes; or (ii) as a tool that assists you in providing professional services to your clients.  For clarity, in no event will Internal Use be deemed to include: (a) use of the Software to provide services that consist primarily of the sale, resale, time-sharing or service bureauing of the Software, or (b) use of the Software by or for the benefit of a third party where You receive a fee for use of, or access to, the Software.

“License Key” means a time-limited software key to activate and use the Software.

“Signup Process” means the web form submitted by You to Fabric Software pursuant to which You requested a license for the Software.

“Software” means the computer software programs and APIs in machine-readable object code form referred to collectively as Fabric Engine, or a standalone application that uses Fabric Engine, or a plugin to a third party application that uses Fabric Engine.

“Source Code” means computer programming code in a form which when printed out or displayed is readable and understandable by a reasonably skilled programmer.

“Specifications” means the information describing the capabilities and functionality of the Software as set forth in any material provided by Fabric Software including the Documentation.

“Term” has the meaning given in Section 4.

“Updates” means bug fixes, patches, or minor additions of functionality to the Software designated by Fabric Software by a change in the digit(s) to the right of the decimal point of the version number or by no change to the version number.

“Upgrades” means releases or versions of the Software designated by Fabric Software by a change in the digit(s) to the left of the decimal point of the version number.

 

LICENSE TERMS

 1.1    Type of License.  As part of the Signup Process, You have requested a license in one of the following categories: (i) Evaluation License; (ii) Studio License; or (iii) Educational License, the terms of which are further described below.

1.2     Grant of License.  Subject to the terms and conditions of this Agreement, Fabric Software grants to You a non-exclusive license to install the object code version of the Software on any Customer-owned computer, and to use the Software on that computer, solely for Your Internal Use.

1.3     Additional Terms.  Your license to use the Software shall be subject to the following limitations: 

(i) in the case of an Evaluation License, use of the Software shall be limited to Your individual use on a laptop computer or local workstation, and in no event will you be entitled to install the Software on any server that may be accessed by any other individual (whether within the same organization or otherwise) or otherwise distribute, share or make available the Software to any other individual without first obtaining the written consent of Fabric Software. An Evaluation License Key to enable such use can be requested here: http://fabricengine.com/request-fabric-evaluation/;

 (ii) in the case of a Studio License, use of the Software will be limited to no more than 5 instances of Interactive Software and no more than 45 instances of Headless Software. A Fabric50 License Key to enable such use can be requested here: http://fabricengine.com/request-fabric-fifty/; and

 (iii) in the case of an Educational License, Customer must be an Educational Institution and all use of the Software must be limited to educational, non-commercial purposes. An Educational License Key can be requested here: http://fabricengine.com/request-fabric-educational/.

1.4  Backup Copies.  After installation of the Software pursuant to this Agreement, You may store a copy of the installation files for the Software solely for backup or archival purposes. Except as expressly provided in this Agreement, You may not otherwise make copies of the Software or Documentation.

1.5  Third-Party Software License Rights.  Certain items of software that may be provided to You together with the Software are owned by third parties and/or are subject to “open source” or “free software” licenses (“Third Party Software”).  The Third Party Software is not subject to the terms and conditions in this Agreement other than Section 6.1 and Section 7.1.  Instead, each item of Third Party Software is licensed under the terms of the end-user license that accompanies such Third Party Software and is provided or otherwise made available to You in electronic or printed form.  Nothing in this Agreement grants You rights that supersede the terms and conditions of any applicable end-user license for the Third Party Software. 

 

LICENSE RESTRICTIONS

2.1    License Eligibility.  Fabric Software limits the number of unpaid licenses within an organization.  Accordingly, any grant of license made under this Agreement is subject to the following restrictions: 

(i) at all times there will be no more than two Evaluation Licenses in effect at any physical location from which a given Customer or any of its affiliated entities operates.  If you wish to deploy instances of the Software beyond this amount, you must apply for a Studio License at http://fabricengine.com/request-fabric-fifty/

(ii) at all times there will be no more than one Studio License in effect for a given Customer or any of its affiliated entities; and

(iii) in no event will Educational Institutions be eligible to receive an Evaluation License or a Studio License. 

2.2   Breach of License Eligibility Requirements.   As part of the Signup Process, You confirmed that the license for which You applied conformed, and would conform at all times, with the requirements set out in Section 2.1 above.  If at any time during the Term You are not in compliance with such requirements, such non-compliance will be deemed to be a material breach of this Agreement and entitle Fabric Software to terminate this Agreement as set out below. 

2.3  Branding Requirements. Any copies of the Software shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to You.  You may not remove or alter any copyright, trademark and/or proprietary notices marked on any part of the Software or related Documentation and must reproduce all such notices on all authorized copies of the Software and related Documentation.

2.4  Prohibited Acts.  You shall not sublicense, distribute or otherwise make the Software available to any third party (including, without limitation, any contractor, franchisee, agent or dealer).  You further agree not to (i) rent, lease, sell, sublicense, assign, or otherwise transfer the Software to anyone else (whether bundled with other products or as a standalone product); (ii) directly or indirectly use the Software or Specifications in the development of any software that is competitive with the Software, or (iii) use the Software to operate as a part of a managed service offering including but not limited to a time-sharing service, outsourcing service, service bureau, or application service provider. You further agree not to reverse engineer, decompile, or disassemble the Software in whole or in part, or otherwise reconstruct or discover any Source Code to the Software (other than the Source Code made available to the Customer by Fabric Software), or attempt to do so.  Notwithstanding the foregoing, decompiling the Software is permitted solely to the extent that the laws of the jurisdiction applicable to Customer’s use of the Software give Customer the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Customer must first request such information from Fabric Software, and Fabric Software may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that Fabric Software’s (and its suppliers’) proprietary rights in the Software are protected. You agree not to translate or modify the Software in any way or create derivative works of the Software without the written approval of Fabric Software (using the unmodified Software to produce applications for Your Internal Use does not constitute a breach of this Section 2.4).  You shall not use any license key with the Software other than the License Key provided by Fabric Software to You, install the Software on any externally accessible server; allow any other computer, terminal or device to access or use the Software; or install or use the Software concurrently on more than one computer except as expressly authorized by the level of license You agreed.  You shall not copy the Software except to make one copy for backup purposes in accordance with Section 1.4.

2.5 Cloud Usage. Use of Software or applications created using Software on cloud services including without limitation Amazon Web Services and Microsoft Azure is expressly forbidden under this Agreement. If you wish to use or make available the Software using any cloud service, please contact sales@fabricengine.com to inquire about obtaining an appropriate license. 

2.6 Commercial Sale of Applications Created Using Software.  If you plan on selling applications created with Software and you are a commercial entity with annual gross revenues in excess of $100,000US or an Educational Institution with a total annual budget for the entire entity (based on prior fiscal year) in excess of $100,000US, then you must be an approved commercial developer of Software. Contact sales@fabricengine.com to inquire about obtaining an appropriate license.

  

UPDATES, MAINTENANCE AND SUPPORT

3.1  Technical Support.  Customer acknowledges that Software is provided as-is with no obligation to provide support or maintenance related to Customer’s use of Software. Contact sales@fabricengine.com to inquire about obtaining an annual support and maintenance contract.

3.2  Software Updates and Upgrades.  Updates and Upgrades to the Software may be made available from time to time.  It is always Your option whether to upgrade the Software to a more recent version. Under this Agreement, Fabric Software will not provide Updates to versions that were released more than one year prior to the then-current version. All Upgrades and Updates to the Software will form part of the Software and will be licensed and treated in accordance with the terms of this Agreement.

3.3  Changes.  Fabric Software reserves the right at any time to not release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.

 

TERM AND TERMINATION

 4.1  Term.  The term of this Agreement (the “Term”) will begin on Your receipt of the applicable License Key and shall continue until the time-out date of the License Key, unless terminated sooner under this Section 4.

4.2  Termination.  Fabric Software may terminate this Agreement immediately upon written notice to You if You breach this Agreement and fail to cure such breach within five days of written notice from Fabric Software.   

4.3  Effect of Termination.  Your rights to use the Software will immediately end upon termination or expiration of this Agreement.  Within five (5) days of termination or expiration of this Agreement, You shall purge all Software and all copies thereof from all computer systems and storage devices on which it was stored, and, upon Fabric Software’s request, you shall provide written certification of same.

 

INTELLECTUAL PROPERTY

5.1  Customer acknowledges that Fabric Software or its licensors own the copyright and all other intellectual property rights relating to the Software, and that no title to the Software or such intellectual property rights is transferred to Customer. Customer will not acquire any rights to the Software except the limited license to use the Software as expressly set forth above, and Fabric Software and its licensors retain all other rights.  

5.2  Any applications created through use of the Software by the Customer will be owned by Customer, provided that in no event will Customer or any third party be entitled to use any such applications without a valid license to use the Software.

 

DISCLAIMER OF WARRANTIES

6.1  DISCLAIMER OF WARRANTIES.  TO THE FULLEST EXTENT ALLOWED BY LAW, EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. FABRIC SOFTWARE, AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. FABRIC SOFTWARE DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT ERROR OR INTERRUPTION.

THE DISCLAIMER OF WARRANTIES IN THIS SECTION 6.1 AND THE LIMITATION OF LIABILITY IN SECTION 7.1 BELOW CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE SOFTWARE IS BEING PROVIDED TO YOU WITHOUT PAYMENT OF ANY FEE, AND ACCORDINGLY, BUT FOR THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY, NEITHER FABRIC SOFTWARE NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.

 

LIMITATION OF LIABILITY

7.1  LIMITATION OF LIABILITY.  TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL FABRIC SOFTWARE (OR ITS SUPPLIERS OR LICENSORS) BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF FABRIC SOFTWARE (OR ITS SUPPLIERS OR LICENSORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF FABRIC SOFTWARE OR ANY OF ITS LICENSORS OR SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SOFTWARE EXCEED US$5.00. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR BACKING UP ALL DATA ASSOCIATED WITH ITS USE OF THE SOFTWARE, AND IN NO EVENT WILL FABRIC SOFTWARE OR ANY OF ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY LOST DATA OR ERRORS IN DATA, WHETHER CAUSED BY THE SOFTWARE OR OTHERWISE.

 

GENERAL PROVISIONS.

8.1  Severability.  In the event any provision of this Agreement is determined to be invalid or unenforceable, that provision shall be enforced to the maximum extent permitted, and the Parties agree that the other provisions of this Agreement shall not be affected and shall continue to be enforced.

8.2  Choice of Law and Venue.  This Agreement shall be governed by the provincial laws of Ontario, Canada, and the federal laws of Canada applicable therein, without regard to any conflict of laws provisions that would require the application of the laws of a different jurisdiction. The Parties agree that this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree that any suit or proceeding arising out of or relating to this Agreement will be brought only in the Province of Ontario, and each shall submit to the exclusive personal and subject matter jurisdiction and venue of such courts.

8.3  Amendments.  In the event you receive any Update or Upgrade, Your use of the Software will be subject to the then-current version of this Agreement in force at such time (an “Updated Agreement”), and the terms of this Agreement will automatically be amended, superseded and replaced by such Updated Agreement.  For clarity, You are under no obligation to accept any Update or Upgrade, and until such time as you do receive an Update or Upgrade, you will not be bound by any Updated Agreement.

8.4  Assignments and Transfers.  Customer may not assign or transfer its rights or obligations under this Agreement, except that Customer may assign the Agreement to a successor to its business that results from a sale of substantially all of Customer’s assets, or any merger or similar transaction, provided that: (i) Customer gives Fabric Software prior written notice of such assignment; (ii) such assignment is not to a competitor of Fabric Software, as determined by Fabric Software, acting reasonably and in good faith; (iii) the assignee agrees in writing to be bound by this Agreement; and (iv) Customer transfers all copies of the Software and Documentation to the third party or destroys any copies not transferred. Fabric Software may assign or novate this Agreement freely without notice to Customer.

8.5  Export / US Government Customers.  Customer acknowledges that Canadian and United States (including without limitation US Export Administration Regulations) and foreign laws prohibit the export/re-export or transfer of products and technical data of US origin, including software, and Customer agrees not to export or re-export the Software or related technology without the appropriate US/Canada and foreign government clearance.  When the Customer is the U.S. Government, the Software and Documentation are hereby identified as “commercial items,” as that term is defined at 48 C.F.R. 2.101, and more specifically as “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Software and Documentation are being provided to U.S. Government Customers (a) only as a commercial end item and (b) with only those rights as are granted to all other customers pursuant to the terms and conditions herein. 

8.6  Waiver.  No term or provision hereof will be considered waived by either Party, and no breach excused by either party, unless such waiver or consent is in writing signed by both Parties. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.

8.7  Notices.  Any notice provided for or permitted under this Agreement will be treated as having been given when (a) delivered personally, (b) sent by confirmed telex or telecopy, (c) sent by commercial overnight courier with written verification of receipt, (d) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, or (e) sent via e-mail. Notices to Fabric Software shall be sent to its then-current principal place of business and notices to Customer shall be sent to Customer’s address appearing in Fabric Software’s records based on information obtained during the Signup Process, or to such other place of which the other party has been notified in accordance with the provisions of this section. Any notices will be treated as having been received upon the earlier of actual receipt or five (5) days after posting.

8.8  Relationship of Parties.  There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf. No other party except Fabric Software and Customer shall be construed as a third party beneficiary to this Agreement or in privity to enforce the provisions of this Agreement at law or in equity.

8.9  Entire Agreement.  The Parties agree that this Agreement is the entire agreement between Customer and Fabric Software relating to its subject matter, and it supersedes any prior agreements, representations, or communications, whether written or oral, relating to that subject matter.  Any terms set forth in any document submitted by Customer, including any Customer purchase order or any other document submitted by Customer, that are additional to, or inconsistent with, this Agreement shall be of no force or effect.

 

 

Last Updated Oct 21, 2016