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VARIEN MAGENTO™ ENTERPRISE EDITION
END USER LICENSE AGREEMENT ("AGREEMENT")
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR
USING THE SOFTWARE.
By downloading or using the Software you agree to this Agreement on your 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 and if you do not have such
legal authority, please do not check the "I agree to the above terms and conditions"
checkbox below. This Agreement, effective as of the date you check the "I agree to the
above terms and conditions" checkbox and click Continue (the "Effective Date") is a legal
agreement between Licensee and Irubin Consulting Inc., d/b/a Varien ("Varien"), a
California corporation having its principal place of business at 11832 West Pico Boulevard,
Los Angeles, California 90064 U.S.
Except for a signed license agreement to use the Software: (i) This Agreement constitutes
the entire agreement concerning Licensee's use of the Software; (ii) No purchase order,
other ordering document or any hand written or typewritten text which purports to modify or
supplement the printed text of this Agreement shall vary the terms hereof; (iii) All such
proposed variations are objected to and shall have no force or effect; and (iv) This
Agreement replaces and supersedes any prior verbal understandings, written communications
Licensee shall pay Varien or its authorized reseller the fees specified by Varien. All
fees due to Varien shall be due and payable within fourteen (14) days of the date of
invoice and overdue payments shall bear interest at the lesser of one and one-half
percent (1.5%) per month or the maximum rate allowed under applicable law. Licensee is
responsible for all taxes concerning the Software and/or services, excluding taxes
based on Varien's or authorized reseller's income.
Varien shall indemnify and defend Licensee against any claims that the Software
infringes any United States patent or United States copyright; provided that Varien is
given prompt notice of such claim and is given information, reasonable assistance and
sole authority to defend or settle the claim. In the defense or settlement of the
claim, Varien shall obtain for Licensee the right to continue using the Software,
replace or modify the Software so that it becomes non-infringing while giving
equivalent performance or, if Varien determines that such remedies are not reasonably
available, remove the infringing portion of the Software, accept its return and refund
the prorated portion of any prepaid but unused fees for the use or support of such
Software license. Varien shall have no liability if the alleged infringement is based
on a modification of the Software by anyone other than Varien; is based on use of the
Software with one or more Servers not listed in a Magento Order Form; or is based on
the use of the Software other than in accordance with the documentation. This Section 5
states Varien's entire liability and Licensee's exclusive remedy for infringement.
Varien will provide support services and Updates for the Software and any Varien
Modifications in accordance with the terms and conditions of support purchased by
All notices shall be in writing and sent by first class mail or overnight mail (or
courier), or transmitted by facsimile (if confirmed by such mailing), to the addresses
indicated on the first page of this Agreement, or such other address as either party
may indicate by at least ten (10) days prior written notice to the other party. Notices
to Varien shall be sent to the Contracts Administration Department.
Licensee may not assign this Agreement without the prior written consent of Varien;
provided that such consent shall not be required for assignment to a purchaser of all
or substantially all of the assets or equity securities of Licensee. Any prohibited
assignment shall be null and void.
This Agreement is made in and shall be governed by the laws of the State of California,
excluding choice of law principles. All proceedings shall be conducted in English.
Venue for all proceedings shall be Los Angeles County, California. The United Nations
Convention for the International Sale of Goods shall not apply. The section headings
herein are provided for convenience only and have no substantive effect on the
construction of this Agreement. Except for Licensee's obligation to pay Varien, neither
party shall be liable for any failure to perform due to causes beyond its reasonable
control. If any provision of this Agreement is held to be unenforceable, this Agreement
shall be construed without such provision. The failure by a party to exercise any right
hereunder shall not operate as a waiver of such party's right to exercise such right or
any other right in the future. This Agreement may be amended only by a written document
executed by a duly authorized representative of each of the parties. This Agreement may
be executed in counterparts.
"Designated Server" shall mean the Server specified in a Magento Order
Form with respect to a particular Software license.
"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 Updates provided by Varien 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 Varien 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 Varien; 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.
"Server" means any physical or virtual server from which a single
instance of the Software is accessed and used either for production purposes
("Production Server Instance") or for non-production purposes, such as
development, test, training and other non-operational business transactions
("Non-Production Server Instance"). For the avoidance of doubt, if one
physical or virtual server contains two (2) instances of the Software, e.g., one
Production Server Instance and one Non-Production Server Instance, then a Server
license is required for each of such instances.
"Software" means Varien's proprietary e-commerce software solution
known as the Magento™ Enterprise Edition, provided solely in source code, including
associated technical documentation, and all Updates thereof furnished to Licensee as
part of Support Services. Except as otherwise specified herein, the term Software
includes certain open source software programs described in Section 4.2. "Software"
does not include any Modifications.
"Term" means the period commencing upon Varien's electronic delivery
of the Software to Licensee and expiring on the date set out in a Magento Order Form,
unless extended by the mutual written consent of both parties.
"Updates" means all published revisions and corrections to the printed
documentation and corrections and new releases of the Software which are generally made
available to Varien's supported customers at no additional cost or for media and
handling charges only. Updates shall not include any options or future products which
Varien sells separately.
LAST UPDATED: 2009-06-25
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