End User License Agreement (“Agreement”)
Last updated September 23, 2017. Replaces the prior version in its entirety.
IMPORTANT - NOTE THAT THE SOFTWARE IS CURRENTLY IN A BETA STAGE. FUNCTIONS MAY NOT PERFORM AS DOCUMENTED. BY PURCHASING A LICENSE IN JANGAFX’ BETA STAGE LICENSEE UNDERSTANDS THAT DOCUMENTATION MAY NOT BE SUFFICIENT OR AVAILABLE.
READ CAREFULLY: JangaFX, LLC, a New Mexico Limited Liability Company located at 100 Hunting Chase, Suite 3C, Cary, NC 27513 or its subsidiary (as applicable, "JangaFX") licenses this software, upgrades, and all related materials (collectively, the "Software"), excluding any open source libraries that are distributed with the Software, subject to the terms and conditions of this Agreement. BY SELECTING "I AGREE", OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT BECOME LEGALLY BINDING ON YOU AS AN INDIVIDUAL OR ON THE ORGANIZATION (“Licensee”) THAT YOU REPRESENT.
IF YOU THE INDIVIDUAL (i) DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR (ii) ARE NOT AUTHORIZED TO DOWNLOAD OR INSTALL THE SOFTWARE OR TO AGREE TO BE BOUND BY THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, YOU ARE REQUIRED TO SELECT "I DO NOT ACCEPT", IN WHICH CASE YOU ARE NOT PERMITTED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE.
NOTE: The terms and conditions of this Agreement were last updated, and are effective as of, the "Last Updated Date" indicated above.
- Communication of Usage Data. Licensee acknowledges that the Software may communicate to JangaFX certain technical, non-personal information concerning Licensee's Licenses and Use of the Software. Licensee hereby consents to such communication.
- Application and Priority of Terms. The terms and conditions of this Agreement apply regardless of, and take priority over, any terms and conditions applicable to Licensee's software or, subject to Section 2.9, any third party software which may be Used in conjunction with the Software.
- LICENSE TYPES AND SCOPE OF USE
- License Grant. Subject to and conditioned on Licensee’s continuous compliance with this Agreement and payment of the applicable fees, JangaFX grants Licensee a non-exclusive, non-sublicensable, non-transferable (Except as explicitly described in section 2.2), limited License to Install and Access the Licensed Software, in each case solely (i) within the scope of the License Type, and (ii) in accordance with the other terms of this Agreement. Various License Types are described below in sections 2.4, 2.5, 2.6, 2.7, and 2.8 respectively. In any case where the License Identification (sent via email after a purchase or subscription) does not specify a License Type, or there is no License Identification, the License Type will, by default, be the Evaluation License.
- Concurrent Use and Transfers. Only to the extent that is proportionate to, and reasonably necessary to support, Licensee’s Licensed Use of the Software in accordance with the Agreement; (i) a Licensee that is an Individual User may have the Software Installed on no more than two (2) Computers or Workstations per valid License Key (“License Key”) at one time; or (ii) a Licensee that is an Organization may only have one (1) Installation per valid License Key per Computer or Workstation at any given time; (iii) unless more Installations are granted explicitly in writing by JangaFX; (iv) provided always that Licensee’s concurrent Use of different Installations of the Software does not exceed the number of valid Licenses that Licensee has paid for or Licensed (as applicable); and (v) provided that the Licensed User is the same Individual for each singular License Key in Use. Licensee may not transfer the License(s) to another Individual User or Organization. This section 2.2, does not apply to section 2.4, as there are no License Keys associated with the Evaluation License Type.
- License Types. The Software is provided to Licensee subject to specific terms and conditions that further define the scope of Licensee's permitted installation of Licenses and Use of the Software based on the type of License granted ("License Type"). The License Types, and the terms and conditions applicable to each License Type, are set out in sections 2.4, 2.5, 2.6, and 2.7 within this Agreement. Licensee must not, and must not attempt to, Install any License(s) or Use the Software outside of the scope of the License Type that applies to the License(s) issued to Licensee. Any actual or attempted Installation of Licenses or Use of the Software outside of the scope of the applicable License Type is a breach of this Agreement and an infringement of the rights of JangaFX.
- Evaluation License. An (“Evaluation License”) may only be Used for evaluation purposes of the Software. It is by default restricted in functionality. Only ten (10) external files or assets may be generated with the Software while it is governed by an Evaluation License. Licensee may at any time choose to upgrade from an Evaluation License to any other License Type, as long as Licensee pays the proper fees associated with that License Type, and explicitly adheres to any applicable terms and conditions for that License Type. Under the condition that Licensee has purchased a License, Licensee may enter the License Key provided to them by JangaFX in the Software as prompted, to remove any limited functionality and gain full access of the Software. The Evaluation License has no expiration and no restrictions on the number of Computers, Workstations or Machines it may be Used on for evaluation purposes. Licensee may not tamper with the Software in any way to remove or bypass the limited functionality.
- Monthly Subscription. A ("Monthly Subscription") is a Commercial License that allows Licensee to Use the Software while all fees, (“Monthly Payments”), are paid when due. The Monthly Subscription License is active for the duration of one (1) month (“Payment Period”) after each Monthly Payment of applicable fees have been paid. If Monthly Payment authorization or card processing fails at the end of a Payment Period, the License will expire seven (7) days after the first instance of a failed Monthly Payment, in which case, JangaFX will try to process the Monthly Payment transaction every 24 hours until the seven (7) day grace period is over or the transaction is successfully completed. Licensee may cancel their Subscription at any time, and the License(s) will remain active until the Payment Period that was paid for ends. Licensee is entitled to Updates and Support for the paid duration of the Monthly Subscription.
- Annual Subscription. An ("Annual Subscription") is a Commercial License that allows Licensee to Use the Software while all fees, (“Annual Payments”), are paid when due. The Annual Subscription License is active for the duration of, and the Payment Period is, one (1) calendar year after each Annual Payment has been authorized. If Annual Payment authorization or card processing fails at the end of a Payment Period, the license will expire seven (7) days after the first instance of a failed Annual Payment, in which case, JangaFX will try to process the Annual Payment transaction every 24 hours until the seven (7) day grace period is over or the transaction is successfully completed. Licensee may cancel their Annual Subscription at any time, and the License(s) will remain active until the Payment Period that was paid for ends. Licensee is entitled to Updates and Support for the paid duration of the Annual Subscription.
- Perpetual License. A (“Perpetual License”) is a Commercial License that allows Licensee to Use the Software for an indefinite period after all fees are paid. Updates and support will be provided to the Licensee for the duration of one (1) calendar year. After the one (1) year period ends, Licensee can choose to remain with the last version downloaded or to purchase a one (1) year Updates and Support package, for 20% of the current license price. There are no penalties for letting Updates & Support lapse for a while before purchasing an annual package.
- Educational License. Upon request, we may grant qualified Individuals or Organizations an (“Educational License”), at the sole discretion of JangaFX, which gives Licensee the ability to Use the Software in a way that will help them learn in an Educational Setting, (i) granted the Individual is a part-time or full-time student at the time of inquiry and will not Use the Software for any commercial, professional or for-profit purposes; (ii) (if Licensee is not an Individual) it is an Organization that will Use the Software only for the purpose of training and instruction, and for no other purpose. The Educational License will have no fees associated with it, and will be provided free of charge upon approval of Licensee's request. The Software may not be Used to generate any product that will be Used for any Commercial Purposes. The Educational License lasts one (1) calendar year.
- Open Source Libraries. The Software may be accompanied by certain open source libraries (in source code and executable forms, as applicable) (the "Open Source Libraries") that works with the Software. The Open Source Libraries are distributed under and subject to the terms and conditions of the applicable open source licenses and notices set out at https://jangafx.com/legal/licenses.html (the "Open Source Licenses"). Licensee hereby agrees to the terms and conditions of the Open Source Licenses as they relate to the applicable Open Source Libraries that are Used by the Software.
- FEES AND PAYMENT
- Fees. Fees are based upon, among other things: (i) the applicable License Type; and (ii) the characteristics of Licensee; All fees are payable in full, without deduction or offset, upon purchase of the License(s) unless otherwise agreed by the parties, unless JangaFX agrees to invoice Licensee, in which case the applicable fees are payable within the period set out in the invoice. All fees are refundable at JangaFX’ discretion. Licensee may cancel an Annual or Monthly Subscription at anytime. JangaFX may suspend Use of the Software, without liability to JangaFX, in the event that any amounts payable by Licensee are past due or Licensee is otherwise in breach of this Agreement. Licenses for certain License Types may be provided free of charge. Fee Specifics can be found and are outlined in sections 2.4, 2.5, 2.6, 2.7, and 2.8.
- Indie Licenses. The pricing applicable to Indie Licenses is only available to those Individuals or Organizations (the "Indie User") where: (i) such Indie User and its Affiliates and related Individuals collectively have in the current calendar year, or had in the most recently completed calendar year, directly or indirectly, aggregate gross revenues from all sources less than US$100,000; and (ii) in the case of an Indie User that is using the Software to create content for a third party that will use such content in connection with a Commercial activity, such third party and its Affiliates and related individuals collectively have in the current calendar year, or had in the most recently completed calendar year, directly or indirectly, aggregate gross revenues from all sources less than US$100,000. If Licensee is taking advantage of the pricing applicable to Indie Licenses, Licensee represents and warrants that it satisfies the criteria set out in this Section 3.2.
- Taxes and Third-Party Fees. All fees are exclusive of any Taxes. If JangaFX has a legal obligation to pay or collect Taxes, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides JangaFX with an acceptable tax exemption certificate issued by the appropriate taxing authority. Licensee must pay any applicable taxes, including VAT if applicable, and any applicable third-party fee (including, for example, ISP charges, data plan charges, credit card fees, foreign exchange fees). JangaFX is not responsible for these fees. JangaFX may take steps to collect the fees Licensee owes JangaFX. Licensee is responsible for all related collection costs and expenses.
- Credit Card Information. If Licensee does not notify JangaFX of updates to Licensee’s payment method, Licensee’s ability to access the Software may be interrupted.
- OWNERSHIP AND RESERVATION OF RIGHTS
- Ownership of Software. The Software is not sold; it is licensed to Licensee under the terms and conditions of this Agreement. JangaFX is the owner of the Software, including all intellectual property rights (including trade secrets rights) relating thereto. No title to the Software or such rights is transferred to Licensee by this Agreement. All rights not expressly granted pursuant to this Agreement are reserved by JangaFX.
- Feedback. JangaFX shall own, and Licensee shall not have any right, title or interest in, any enhancements or other modifications to the Software created based on any suggestions, enhancement requests, recommendations or other feedback provided by or on behalf of Licensee or Authorized Users.
- RESTRICTIONS ON USE
- Restrictions on Use of Software. Please note that a License Key is required to access the Software for full functionality and Commercial Use. Subject to the terms and conditions for the applicable License Type, Licensee agrees that it will not, and will not permit any third party to, directly or indirectly: (i) copy the Software (except that Licensee may download and install the Software and make one (1) copy of the Software solely for backup purposes) or create derivative works based on the Software; (ii) assign, transfer, lease, rent, sublicense, distribute or otherwise make available the Software, any License or any
right granted under this Agreement, in whole or in part, to any other Individual or Organization, including on a timesharing, software-as-a-service or other similar basis; (iii) permit any third party, other than an Authorized User, to Install Licenses or Use the Software; (iv) share any user ids or passwords with anyone other than Authorized Users; (v) Use the Software under a Non-Commercial License for Commercial purposes, or receive any form of compensation for work product created or work performed Using the Software under a Non-Commercial License; (vii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of any portion of the Software; (viii) disassemble, reverse engineer or use the file format of any file generated by the Software for
purposes of by-passing any restrictions or requirements of the Software; (ix)
attempt to tamper with, alter, disable, hinder, by-pass, override, or
circumvent any security, reliability, integrity, accounting or other mechanism,
restriction or requirement of the Software, including any License or any other
mechanism that permits, monitors or limits installation of Licenses or Use of
the Software to the applicable scope in accordance with this Agreement; (x) modify or attempt to modify the Software; (xiii) install or Use the Software in any
way that would subject the Software, in whole in or in part, to governmental
regulation that would not have otherwise applied but for such installation or
Use; (xiv) remove, obscure or alter any copyright, trade-mark, patent or
proprietary notice affixed to the media or packaging of the Software or
displayed by or in the Software; (xv) access or attempt to access JangaFX'
network, databases, or systems (other than to download the Software); or (xvi)
perform load tests, network scans, penetration tests, ethical hacks or any
other security auditing procedures on the JangaFX network.
- Restrictions on Open Source Libraries. Licensee's Use of the Open Source Libraries that this Software Uses are governed by the Open Source Licenses, as applicable.
- DISCLAIMER OF WARRANTIES
- IMPORTANT - NOTE THAT THE SOFTWARE IS CURRENTLY IN A BETA STAGE. FUNCTIONS MAY NOT PERFORM AS DOCUMENTED. BY PURCHASING A LICENSE IN JANGAFX’ BETA STAGE LICENSEE UNDERSTANDS THAT DOCUMENTATION MAY NOT BE SUFFICIENT OR AVAILABLE.
- Limited Warranty. JangaFX warrants that the Software will perform substantially in accordance with the applicable JangaFX user documentation (excluding any errors in the documentation, as determined by JangaFX in good faith). JangaFX' entire responsibility and obligation, and Licensee's exclusive remedy, for any breach of the foregoing warranty shall be for JangaFX to use commercially reasonable efforts to cause the Software to comply with such warranty.
- Warranty Disclaimer. EXCEPT AS PROVIDED IN SECTION 6.2, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR EQUITY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OTHERWISE FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, JANGAFX DOES NOT WARRANT THAT: (i) THE SOFTWARE WILL MEET LICENSEE'S NEEDS OR REQUIREMENTS; ii) THE SOFTWARE WILL RUN WITHOUT INTERRUPTION OR BE ERROR FREE; (iii) THE SOFTWARE IS IMPENETRABLE OR OTHERWISE MEETS ANY SECURITY STANDARDS; OR (iv) THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN ALL COMBINATIONS WHICH MAY BE SELECTED FOR USE BY LICENSEE. FOR PURPOSES OF THIS SECTION 6.3 (BUT NOT FOR PURPOSES OF SECTION 6.2), REFERENCES TO SOFTWARE INCLUDE THE OPEN SOURCE LIBRARIES. JANGAFX MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, REGARDING THE OPEN SOURCE LIBRARIES.
- Limitation on Types of Recoverable Damages. JANGAFX WILL ONLY BE LIABLE FOR DIRECT DAMAGES, SUBJECT TO SECTION 6.5. IN NO EVENT WILL JANGAFX BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST OR DAMAGED DATA, OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF JANGAFX IS INFORMED OR OTHERWISE HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
- Monetary Cap on Damages. LICENSEE AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF JANGAFX AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES FOR ALL CLAIMS UNDER ANY AND ALL CIRCUMSTANCES RELATING TO THE SOFTWARE UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO: (I) WITH RESPECT TO JANGAFX' INDEMNITY OBLIGATION UNDER SECTION 8, THE FEES PAID TO JANGAFX BY LICENSEE IN RESPECT OF THE INFRINGING SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM IN RESPECT OF SUCH LIABILITY; AND (II) IN ALL OTHER INSTANCES, THE FEES PAID TO JANGAFX BY LICENSEE IN RESPECT OF THE APPLICABLE SOFTWARE IN THE THREE (3) MONTH PERIOD PRECEDING THE CLAIM IN RESPECT OF SUCH LIABILITY.
- LIMITATION OF LIABILITY
- Disclaimer of Certain Damages. IN NO EVENT SHALL JANGAFX OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF JANGAFX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. JANGAFX IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. YOU ARE FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES AS AN INTERNET CONNECTION IS REQUIRED.
- Application of and Basis for Limitations. LICENSEE AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN JANGAFX AND LICENSEE AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
- Indemnification. Licensee will indemnify JangaFX and JangaFX’ subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to Licensee’s content, Licensee’s Use of the Software, or Licensee’s violation of this Agreement.
- CHANGE OF TERMS
- Term Revisions. JangaFX may revise the terms of this Agreement at any time for best legal practice or any other reason. JangaFX will not use this right to make substantial changes to the Agreement to Licensee’s detriment without giving Licensee a chance to agree to the updated Agreement. JangaFX will inform Licensee in advance of any substantial revision of the Agreement by sending an email to Licensee.
- TERM AND TERMINATION
- Termination by Licensee. Licensee may stop using the Software at any time. Termination of Licensee’s Subscription or Account does not relieve Licensee of any obligation to pay any outstanding fees.
- Termination by JangaFX. If JangaFX terminates this Agreement for reasons other than for cause, then JangaFX will make reasonable effort to notify Licensee at least thirty (30) days prior to termination via the email address Licensee has provided to JangaFX. JangaFX may, at any time, terminate Licensee's right to Use and Access the Software if: (a) Licensee breaches any provision of this Agreement (or act in a manner that clearly shows that the Licensee does not intend to, or is unable to, comply with this Agreement); (b) Licensee fails to make the timely payment of fees for the Software, if any; (c) JangaFX is required to do so by law (for example, where the provision of the Software to Licensee is, or becomes, unlawful); (d) JangaFX elects to discontinue the Software, in whole or in part, (such as if it becomes impractical for JangaFX to continue offering Software in Licensee’s region due to change of law);
- Survival. Upon termination of this Agreement, sections 3 to 14 inclusively will survive any termination or expiration of the Agreement. Upon the expiration or termination of the Software, some or all of the Software may cease to operate without prior notice.
- EXPORT CONTROL LAWS
- Export Laws. The Software and Licensee’s Use of the Software, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and Use of the Software. Licensee agrees to comply with all the laws, restrictions, and regulations.
- AUDIT RIGHT
- Auditing. Upon the receipt of JangaFX’ reasonable prior written notice to Licensee, Licensee shall permit JangaFX or its designees to audit from time to time Licensee’s Use of the Software. Licensee shall provide reasonable assistance to JangaFX or its designees in the event such audit is conducted.
- Language. The governing language of this Agreement shall be English. Any translation of this Agreement is made for information purposes only and the English language version shall prevail.
- Governing Law. The laws of the state of New Mexico shall govern this Agreement and Licensee’s Use of the Software. Licensee’s Use of the Software may also be subject to other local, state, national, or international laws.
- Notice to JangaFX. Licensee may send notices to JangaFX at the following address: JangaFX, LLC 100 Hunting Chase, Suite 3C, Cary, NC 27513 Attention: Legal Representative.
- Notice to Licensee. JangaFX may notify Licensee by email, postal mail, postings within the Software, or other legally acceptable means.
- Entire Agreement. This Agreement constitutes the entire Agreement between Licensee and JangaFX regarding Licensee’s Use of the Software and supersede any prior agreements between Licensee and JangaFX relating to the Software.
- Non-Assignment. Licensee may not assign or otherwise transfer this Agreement or Licensee’s rights and obligations under this Agreement, in whole or in part, without JangaFX’ written consent and any such attempt will be void. JangaFX may transfer any rights under this Agreement to a third party.
- Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.
- No Waiver. A failure of a JangaFX to strictly enforce a provision of this Agreement shall in no event be considered a waiver of any part of such provision. No waiver by JangaFX of any breach or default by Licensee shall operate as a waiver of any succeeding breach or other default or breach by Licensee. No waiver shall have any effect unless it is specific, irrevocable and in writing.
- Dispute Resolution
- Disputes. We’re very happy that you’ve chosen to support JangaFX’ Software and Tools, and sincerely hope you’re satisfied with your purchase. If you aren’t satisfied at any time during your use of our Software or Tools, please contact us immediately at firstname.lastname@example.org. If you have any technical issues or bugs to report, please report them on our bug submission page https://jangafx.com/support.