ON TAP OÜ END USER LICENSE AGREEMENT (AGREEMENT) PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. LICENSEE AGREES THAT ON TAP OÜ MAY MAKE CHANGES TO THESE TERMS AT ANY TIME WITHOUT PRIOR NOTICE. DISCLAIMER By adding to, editing, or in any way modifying any code in this extension, the Licensee understands that On Tap OÜ is not held liable for any inconsistencies or abnormalities in the behaviour of the extension. By adding to, editing, or in any way modifying this code, the Licensee terminates any agreement of support offered by On Tap OÜ Upon discovery of modified code in the process of support, the Licensee is still held accountable for any and all billable time On Tap OÜ spent during the support process. On Tap OÜ does not guarantee compatibility with any other framework extension. On Tap OÜ is not responsible for any inconsistencies or abnormalities in the behaviour of this code if caused by any other frameworks or framework extension(s). By downloading or using the Software you agree to this Agreement on behalf as an individual, and on behalf of your employer or another entity with which you are associated, if such employer or entity has not previously accepted these terms (you and such employer or other entity, collectively, the Licensee) and agree to be bound by its terms and conditions; and b) you are accepting electronic delivery of the Software. If the Licensee has not previously accepted these terms, you represent and warrant that you have full legal authority to bind the Licensee to these terms and conditions. This Agreement, is a legal agreement between On Tap OÜ having its principal place of business at Pärnu mnt. 141-43, 11314 Tallinn, Estonia. This Agreement constitutes the entire agreement concerning Licensees use of all On Tap OÜ software. The laws of England and Wales shall apply to this agreement. This Agreement replaces and supersedes any verbal understandings, written communications and representations, including and not limited to purchase order documentation, excepted those contained in subsequent writing, including by not limited to a license agreement with terms for support and an accompanying ordering schedule, in all cases signed by On Tap OÜ. 1. License 1.1 Subject to Licensee's compliance with terms and conditions of this Agreement and any applicable payment terms, On Tap OÜ grants Licensee a non-transferable, non-assignable, non-sub licensable, worldwide license solely during the Term to use, modify and create derivative works in respect of the Software, solely for internal purposes, in accordance with Software's technical documentation. Such license is limited to the maximum number of production installations as approved in writing by On Tap OÜ. 1.2 In the event that Licensee's actual number of production installations of a particular Software license exceeds the licensed number of production installations on such license, Licensee shall promptly provide On Tap OÜ with written notice and pay On Tap OÜ the fees required to license such additional Server(s) in accordance with the commercial terms set out in the Ordering Schedule. 1.3 Licensee shall implement reasonable controls to ensure that it does not exceed the maximum number of licensed production installations of the Software. 1.4 On Tap OÜ shall provide to Licensee an initial copy of the Software, including the associated technical documentation, for use by Licensee in accordance with this Agreement. 1.5 The Licensee shall not resell the extension or any source code under different branding than On Tap OÜ 1.6 The Licensee shall not resell any functionality of On Tap OÜ as a service. 2. License Exclusions 2.1 Except as expressly authorised herein, Licensee shall not: a. use or deploy the Software on any Server in excess of the number of production installations; b. distribute, sublicense, disclose, market, rent, lease, remote computing services, networking, batch processing or transfer to any third party the Software or permit any person entity to have access to the Software by means of time sharing, remote computing services, networking, batch processing, service bureau or time sharing arrangement; 2.2. No license, right or interest in any On Tap OÜ trademark, trade name or service mark is granted hereunder. 2.3 A single load-balanced environment combining a number of different web servers shall be considered included in the Customer's existing single production installation. 2.4 A development and/or staging Platform environment (which is not accessible to the public) shall be considered included in the Customer's existing single production installation. 3. Fees and Payment Terms Licensee shall pay On Tap OÜ the fees specified by On Tap OÜ. All fees shall be due at the point of sale. Once payment is received, the software will be electronically shipped. Licensee is responsible for all taxes concerning the Software and/or services, excluding taxes based on On Tap OÜ's income. Licensee is responsible for fees concerning online payment for software. 4. Title and Protection 4.1 On Tap OÜ retains title to all portions of the Proprietary Material and any copies thereof. Licensee agree to maintain strict controls to ensure that such materials are treated confidentially and safeguarded with at least the same degree of care that it takes to protect its own information of a similar nature, which in no event shall be less than a reasonable degree of care, and shall not disclose the Proprietary Material to anyone other than those of its employees or consultants under nondisclosure obligations, having a need to know for purposes consistent with this Agreement. Licensee shall affix, to each full or partial copy of the Proprietary Materials or any portion thereof made by Licensee, all copyright and proprietary information notice as were affixed to the original. The obligations set forth in this Section shall survive termination of this Agreement. 5. Indemnification Licensee agrees to defend, indemnify and hold harmless On Tap OÜ and its affiliates, representatives, partners, agents and employees form and against all and all liabilities, claims, costs and expenses, including attorneys fees, that arise out of or in connection with the use of the Software, or a break of these Terms. 6. Default and Termination 6.1. An event of default shall be deemed to occur if: (i) Licensee fails to perform any of its obligations under the Sections entitled "License Exclusions" or "Title and Protection"; or (ii) either party fails to perform any other material obligation under this Agreement and such failure remains uncured for more than thirty (30) days after receipt of written notice thereof. 6.2. If an event of default occurs, the non-defaulting party, in addition to any other rights available to it under the law, may terminate this Agreement and all licenses granted hereunder by written notice to the defaulting party. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. 6.3. Within thirty (30) days after termination of the Software license or expiration of the Term, Licensee shall certify in writing to On Tap OÜ that Licensee has ceased use of the Software and that all copies of the Software in any form, including partial copies within modified versions, have been destroyed. 7. Warranty 7.1 Warranty for Software. To the extent of the law, the Software is provided “as is†and without any warranty, either express or implied. We do not warrant that use of the Software will be uninterrupted. We do not warrant that all errors or bugs have been or can be removed from the Software. We do not warrant anything in respect of merchantability of fitness for a particular purpose that you use the Software for. If any court determines On Tap has been in breach of this warranty, then the exclusive remedy to the Customer shall be for On Tap OÜ, in the sole discretion of On Tap OÜ, to use commercially reasonable efforts to provide the Customer with an error correction or workaround which corrects the reported issue, to provide a Software upgrade or if On Tap OÜ determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund only the Customer's original purchase cost of the Software. 7.2 Exclusions to Warranty. On Tap OÜ is not liable to assist customers who have modified the original Platform's core code or modified the Software; regardless of who did the code modifications. 8. Support and Updates 8.1 On Tap OÜ will provide support for the software purchased for no additional charge. 8.2 Support does not include installing the software for you, or modifying the functionality of the module, and may exclude other activities at On Tap OÜ discretion. 8.3 On Tap OÜ will provide software updates for the software purchased for no additional charge within the Product Lifetime. These will, from time to time, include bug fixes and feature improvements. 9. Limitation of Liability 9.1 LIABILITY EXCLUSIONS. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY'S LIABILITY FOR (i) THE TORT OF FRAUD OR DECIT (ii) DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY NEGLIGENCE OR (iii) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. SAVE FOR THE FOREGOING, NEITHER PARTY ACCEPTS AND HEREBY EXCLUDES ANY LIABILITY FOR LOSS OF OR DAMAGE TO LICENSEES TANGIBLE PROPERTY OTHER THAN THAT CAUSE BY ITS NEGLIGENCE AND HEREBY EXCLUDES ANY OTHER LIABILITY FOR NEGLIGENCE ARISING PURSUANT TO THE TERMS OF THIS AGREEMENT. SAVE FOR THE FOREGOING, NEITHER PARTY ACCEPTS AND HEREBY EXCLUDES ANY LIABILITY FOR LOSS OF OR DAMAGE TO LICENSEES TANGIBLE PROPERTY OTHER THAN THAT CAUSE BY ITS NEGLIGENCE AND HEREBY EXCLUDES ANY OTHER LIABILITY FOR NEGLIGENCE ARISNG PURSUANT TO THE TERMS OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR: LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF DAMAGE TO CORRUPTION OF DATA; OR CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED) WHETHER FORESEEABLE OR UNFORESEEABLE BASED ON CLAIMS OF LICENSEE OR ANY OTHER PARTY ARISING OUT OF ANY BREAK OR FAILURE OF EXPRESS OR IMPLIED WARRANTY CONDITIONS OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. 11. General On Tap OÜ reserves the right to terminate this license at any time without notice or consent of the licensee. On Tap OÜ reserves the right to terminate all or any support liabilities at any time without notice or consent of licensee. 12. Refunds 12.1 Within the first 30 days of purchase you are eligible for a full refund. 12.2 Between 31 and 60 days of purchase, we will credit your account with an amount equal to the full purchase price for use against future purchases from our website. 12.3 After 60 days, we do not provide refunds for any reason. 12.3 The amount of the refund will not exceed the amount paid for the Software. 13. License Usage An order for the Software can be used on as many Production Installations as the purchased quantity at the point of order. The Licensee shall not resell the Software or any source code whatsoever. The Licensee shall not resell any functionality of On Tap OÜ as a service. 14. Privacy Policy 14.1 On Tap OÜ may collect anonymous usage data, and license-identified diagnostics data for product support purposes and for the enforcement of the Customer's entitlement to install the Software on a maximum number of Production Installations. 14.2 Other terms of On Tap OÜ's Terms of Service can be found at http://www.ontapgroup.com/terms-of-service/ 15. Definitions Licensee is the person who is entering into this contract with On Tap OÜ. This person is purchasing and implementing On Tap OÜ. "Modifications" means any code developed by Licensee or any third party, including without limitation, configuration, integrations, implementations, or localizations to the external layer of the core, baseline Software product. The term "Modifications" excludes bug fixes supplied as part of Support Services. "Proprietary Material" means the Software, related documentation, and all parts, copies and modifications thereof, and any other information, in whatever form, received by Licensee hereunder from On Tap OÜ or its licensors, provided, however, such information shall not be deemed Proprietary Material if it (a) is or becomes a part of the public domain through no act or omission of Licensee; or (b) was in Licensee's lawful possession prior to the disclosure and had not been obtained by Licensee from On Tap OÜ; or (c) is lawfully disclosed to Licensee by a third party without restriction on disclosure; or (d) is independently developed by Licensee without reference to or use of the Proprietary Material. "Platform" means the underlying software or service that the Software is designed to be used with. Examples of this are, but not limited to, Magento, BigCommerce, Shopify, WooComerce, OpenCart and Prestashop. "Production installations" means a single installation of the Software on a single instance of a Platform. "Software" means On Tap OÜ's proprietary software solution, provided solely in source code, including associated technical documentation, and all bug fix updates thereof furnished to Licensee as part of Support Services. "Product Lifetime" is defined a single major version. For example, if you buy version 1.0.0, then the Product Lifetime includes every inclusive version in the 1.X release roadmap. However, subsequent major versions (e.g. 2.X, 3,X, and so on) are excluded, unless you purchase the software within 6 months of a new major version being released. "Term" means the period commencing upon On Tap OÜ's electronic delivery of the Software to Licensee and expiring on the date set out in the Ordering Schedule, unless extended by the mutual written consent of both parties. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labour disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
