NDepend - End-User License Agreement
EULA – NDepend / VisualNDepend / NDepend.Console / NDepend API / CQLinq
Copyright (C) 2004-2020 ZEN PROGRAM LTD
END-USER LICENSE AGREEMENT
FOR ALL SOFTWARE PRODUCT(S)
IMPORTANT- READ CAREFULLY: This ZEN PROGRAM LTD ("ZEN PROGRAM") End-User License Agreement ("EULA") is a legal agreement between you, a developer of software applications, ("Developer End User") and ZEN PROGRAM for all ZEN PROGRAM’s products, controls, source code, demos, intermediate files, media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT(S)") contained in this installation file.
Note: In case the terms of this Agreement are in conflict with the terms of any agreement individually negotiated and agreed between ZEN PROGRAM and Licensee, the terms of the latter shall prevail.
1.1. "ZEN PROGRAM" , "We" or “Us” means ZEN PROGRAM LTD. having its principal place of business at Grand Baie Business Quarter, Suite 204, Chemin Vingt Pieds, Grand Bay 30529, Mauritius, Republic of Mauritius, Registration number:124892 C1/GBL Company.
1.2. "Licensee" means the sole proprietor or legal entity specified in the Subscription Confirmation. For legal entities, "Licensee" includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.
2.1. "Agreement" means this Subscription License Agreement.
2.2. "Product" means any software provided as part of the NDepend offering.
2.3. "Client" means a computer device used by User for running Product.
2.4. "Customer" means an individual or a legal entity purchasing Product directly from ZEN PROGRAM.
2.5. "Product Version" means a release, update, or upgrade of a particular Product that is not identified by ZEN PROGRAM as being made for the purpose of fixing software bugs.
2.6. "Bug Fix Update" for a particular Product Version means a software update or release that is specifically identified by ZEN PROGRAM as a bug fix for that Product Version.
2.7. "Fallback Date" means the date that was 12 months prior to the date of expiration of the Subscription.
2.8. "Fallback Version" means the most recent Product Version that ZEN PROGRAM made available for public purchase prior to the Fallback Date, along with any Bug Fix Updates for that Product Version. For purposes of clarity, Fallback Version does not include any Product updates that Licensee may have used in the period between the Fallback Date and the date of expiration of the Subscription.
2.9. "NDepend" means all of ZEN PROGRAM individual developer productivity software (as identified on the NDepend website).
2.10. "Subscription Confirmation" means an email confirming Licensee's rights to access and use Products, including NDepend Subscription plans and number of licenses acquired.
2.11. "NDepend Subscription" specifies the subscription term, the set of Products covered by this Agreement, subscription fees and payment schedules.
2.12. "User" means any employee, independent contractor or other temporary worker authorized by Licensee to use Software while performing duties within the scope of their employment or assignment.
3. GRANT OF LICENSE
3.1. The Product is licensed on a per-seat basis. If Licensee complies with terms of this Agreement, Licensee has the rights identified below in this section for each NDepend Subscription that Licensee acquires.
3.2. Unless the NDepend Subscription is expired or this Agreement is terminated in accordance with Section 12, and subject to the terms and conditions specified herein, ZEN PROGRAM grants Licensee a limited, non-exclusive and non-transferable license to use each Product covered by NDepend Subscription as follows:
(A) Licensee may:
(i) Install and use the Product covered by NDepend Subscription on any operating system supported by the Product;
(ii) Make one backup copy of the Product solely for archival purposes.
(B) Licensee may not:
(i) Allow the same NDepend Subscription to be used concurrently by more than one (1) User.
(ii) Rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense or transfer the Product, or provide access to the Product or Licensee's NDepend license to a third party;
(iii) Reverse-engineer, decompile, disassemble, modify, or translate the Product, or make any attempt to discover the source code of the Product;
(iv) Remove or obscure any proprietary or other notices contained in the Product.
3.3. Following the expiration of this Agreement, the license rights in Section 3.2(A) shall continue on a perpetual, royalty-free, limited, non-exclusive, and non-transferable basis for the continued use of a Fallback Version of NDepend Developer and Build-Machine subscriptions. There is no Perpetual Fallback for the NDepend Azure DevOps / TFS extension. The rights granted in this Section are expressly contingent upon Licensee having paid in full the applicable NDepend Subscription fees for the preceding 12 months or longer without interruption. The limitations set forth in clause 3.2.B of this Agreement apply to the usage of the Fallback Version. The parties agree that upon expiration of this Agreement and Licensee's continued use of the Fallback Version, the provisions identified in Section 12.5 shall continue to apply to Licensee.
3.4. Products are made available on a limited license or access basis, and no ownership right is conveyed to Licensee, irrespective of the use of terms such as "purchase" or "sale". ZEN PROGRAM has and retains all right, title and interest, including all intellectual property rights, in and to the Products any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for ZEN PROGRAM, including without limitation as they may incorporate Feedback (as defined below).
4. PURCHASING THROUGH RESELLERS
This Agreement applies whether Licensee purchases an NDepend Subscription directly from ZEN PROGRAM or through resellers. If Licensee purchases through a reseller, the NDepend Subscription details shall be as stated in the Subscription Confirmation issued by a reseller to Licensee, and the reseller is responsible for the accuracy of any such Subscription Confirmation. Resellers are not authorized to make any promises or commitments on ZEN PROGRAM’s behalf, and ZEN PROGRAM is not bound by any obligations to Licensee other than as specified in this Agreement.
5. ACCESS TO PRODUCTS
5.1. All deliveries under this Agreement will be electronic. Licensee and its Users must have an Internet connection in order to gain access to NDepend products and receive any deliveries. For the avoidance of any doubt, Licensee is responsible for downloading and installing Products. ZEN PROGRAM will make Products available to Licensee for download on NDepend website at www.ndepend.com.
5.2. Licensee and its Users may use NDepend in accordance with its documentation. Licensee and its Users are solely responsible for the accuracy of any information provided via and any action taken through NDepend.
Licensee must pay NDepend Subscription fees in accordance with the ZEN PROGRAM Terms of Purchase or reseller's terms of purchase, whichever is applicable. If Licensee fails to make the timely payment of NDepend Subscription fees, this Agreement will be terminated and Licensee may not use Products except as set forth in Section 3.3 of this Agreement.
All prices for SOFTWARE PRODUCT(S) on the NDepend website are displayed without any indirect taxes. Unless stipulated separately by this Agreement, ZEN PROGRAM LTD, shall not charge the Developer End User any taxes excluding the value added tax (V.A.T.). Where applicable, ZEN PROGRAM LTD, shall charge any Developer End User residing in the European Union (European Economic Community), the value added tax under the legislation of the French Republic. The value added tax sum shall be added to the final invoice sum issued by ZEN PROGRAM LTD at the moment of purchase and shall be considered obligatory for any EU resident user.
Licensee has no obligation to provide us with ideas, suggestions, or proposals ("Feedback"). However, if Licensee or Users submit Feedback to us, then Licensee grants us a nonexclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
9. NDEPEND SUBSCRIPTION TRIAL
9.1. Subject to the terms of this Agreement, Licensee is granted a one-time right to install and use Product for evaluation purposes without charge for a period of 14 days (renewable once) from the date of the Product installation, unless otherwise specified ("Evaluation Period"). Licensee's use of Product during Evaluation Period shall be limited to the internal evaluation of Product for the sole purpose of determining whether Product meets Licensee's requirements and whether Licensee desires to continue using Product.
9.2. Licensee may withdraw from using Product at Licensee's sole discretion any time before expiration of Evaluation Period. Upon expiration of Evaluation Period, Licensee's right to continue to use Product will terminate, unless Licensee purchases a NDepend Subscription to the Product. The Product contains a feature that will automatically disable the Product upon expiration of Evaluation Period.
10. LIMITED WARRANTY
ALL PRODUCTS ARE PROVIDED TO LICENSEE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES. USE OF THE PRODUCTS IS AT YOUR OWN RISK. ZEN PROGRAM MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZEN PROGRAM, AND ITS SUPPLIERS AND RESELLERS, DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE PRODUCTS, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. ZEN PROGRAM (AND ITS AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) DOES NOT WARRANT THAT THE PRODUCTS ARE ACCURATE, RELIABLE OR CORRECT; THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE PRODUCTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
11. DISCLAIMER OF DAMAGES
11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ZEN PROGRAM (OR ITS AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES), OR ZEN PROGRAM LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANYONE ELSE FOR: (A) ANY LOSS OF USE, DATA, GOODWILL, OR PROFITS, WHETHER OR NOT FORESEEABLE; (B) ANY LOSS OR DAMAGES IN CONNECTION WITH TERMINATION OR SUSPENSION OF LICENSEE'S ACCESS TO OUR PRODUCTS IN ACCORDANCE WITH THIS AGREEMENT, AND (C) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE (D) RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE, (E) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR (F) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR ACCESS TO THE SERVICES OR SOFTWARE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11.2. OUR TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO ONE HUNDRED (100) US DOLLARS OR THE AGGREGATE AMOUNT THAT LICENSEE PAID FOR PRODUCTS DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE LIABILITY EXCEEDING THE AMOUNT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. TERM AND TERMINATION
12.1. The term of this Agreement will commence upon acceptance of this Agreement by Licensee as set forth in the preamble above, and will continue for each Product through the end of the applicable subscription period specified in the respective Subscription Confirmation. This Agreement will automatically renew with respect to each Product for a successive NDepend Subscription term, unless terminated as set forth herein.
12.2. Licensee may terminate this Agreement at any time by cancelling a subscription. If such termination occurs during a then-current subscription period, this Agreement will continue to be effective until the end of that subscription period. Such termination does not relieve Licensee of the obligation to pay any outstanding subscription fees owed to ZEN PROGRAM, and no credits or refunds will be issued to Licensee for prepaid subscription fees. Any refund request following the Product purchase date will be subject to the prior authorization by ZEN PROGRAM and acceptance of such request shall be at the sole discretion of ZEN PROGRAM, unless otherwise provided by applicable law.
ZEN PROGRAM provides an opportunity to evaluate any of its Products free of charge during a trial period and encourages Customer to fully evaluate a Product prior to purchasing. Customer may withdraw from using Product at its sole discretion at any time before expiration of a free trial period.
12.3. ZEN PROGRAM may terminate this agreement if:
(A) Licensee has materially breached this Agreement and fails to cure such breach within thirty (30) days of written notice thereof;
(B) Licensee fails to make the timely payment of subscription fees;
(C) ZEN PROGRAM is required to do so by law (for example, where the provision of the ZEN PROGRAM NDepend to Licensee is, or becomes, unlawful); or
(D) ZEN PROGRAM elects to discontinue providing ZEN PROGRAM’s NDepend, in whole or in part.
12.4. ZEN PROGRAM will make reasonable efforts to notify Licensee via email as follows:
(A) Thirty (30) days prior to termination of the Agreement in the events specified in Clauses 11.3(C) and 11.3(D) above, and in such events Licensee will be entitled to refund of unused portion of prepaid subscription fees, if applicable;
(B) Three (3) days prior to termination of the Agreement in the event specified in Clause 11.3(B), and in such event Licensee will not be entitled to any refund of unused portion of prepaid subscription fees.
12.5. Survival. Upon the expiration or termination of this Agreement by Licensee under Section 12.2, and if Licensee elects to use the Fallback Version Licensee subject to Section 3.3 of this Agreement, Sections 3.3, 8, 10 and 11 of this Agreement will survive.
13. TEMPORARY SUSPENSION FOR NON-PAYMENT
13.1. ZEN PROGRAM reserves the right to suspend Licensee's access to ZEN PROGRAM Products in the event that Licensee fails to make payment for its subscription.
13.2. If ZEN PROGRAM suspends Licensee's access to ZEN PROGRAM Products for non-payment according to the provision 13.1., Licensee must pay all past due amounts in order to restore its access to ZEN PROGRAM Products.
13.3. Licensee hereby agrees that ZEN PROGRAM is entitled to charge Licensee for the time period during which Licensee has access to ZEN PROGRAM Products until Licensee or ZEN PROGRAM terminates or suspends Licensee's subscription in accordance with this Agreement.
14. EXPORT REGULATIONS
Licensee shall comply with all applicable laws and regulations with regards to: economic sanctions; export controls; import regulations; and trade embargoes ("Sanctions"), including those of the European Union and United States (specifically the Export Administration Regulations (EAR)). Licensee acknowledges that it is not a person targeted by Sanctions nor is it otherwise owned or controlled by or acting on behalf of any person targeted by Sanctions. Further, Licensee acknowledges that it will not download or otherwise export or re-export ZEN PROGRAM’s NDepend or any related technical data directly or indirectly to any person targeted by Sanctions or download or otherwise use ZEN PROGRAM’s NDepend for any end-use prohibited or restricted by Sanctions.
Licensee agrees to be identified as a customer of ZEN PROGRAM and that ZEN PROGRAM may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee's business in ZEN PROGRAM marketing materials, on the ZEN PROGRAM website, in public or legal documents. Licensee hereby grants ZEN PROGRAM a license to use Licensee's name and any of Licensee's trade names and trademarks solely pursuant to this marketing section.
16.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior agreements between Licensee and ZEN PROGRAM regarding Licensee's use of any ZEN PROGRAM software covered by ZEN PROGRAM’s NDepend. No purchase order, other ordering document or any handwritten or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both Licensee and ZEN PROGRAM.
16.2. Reservation of Rights. ZEN PROGRAM reserves the right at any time to cease the support of ZEN PROGRAM’s NDepend and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of ZEN PROGRAM’s NDepend.
16.3. Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces Licensee's rights, we will use reasonable efforts to notify Licensee (by, for example, sending an email to the billing or technical contact provided by Licensee to us, posted on our blog, or via the Product itself). If we modify Agreement, the modified version of Agreement will be effective upon the next NDepend Subscription term. In this case, if Licensee objects to the updated Agreement terms, as Licensee's exclusive remedy, Licensee may cancel an NDepend Subscription. Licensee may be required to click through the updated Agreement to show the acceptance. For the avoidance of doubt, any Subscription Confirmation is subject to the version of the Agreement in effect on the Subscription Confirmation date.
16.4. Opportunity to Review. Licensee hereby declares that Licensee has had sufficient opportunity to review this Agreement, understand the content of all of its clauses, negotiate its terms, and seek independent professional legal advice in that respect before entering into it. Consequently, any statutory "form contracts" ("adhesion contracts") regulations shall not be applicable to this Agreement.
16.5. Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
16.6. Headings. Headings and titles are for convenience only and do not affect the interpretation of this Agreement.
16.7. No Waiver. Our failure to enforce or exercise any of this Agreement is not a waiver of that section.
16.8. Notice. ZEN PROGRAM may deliver any notice to Licensee via electronic mail to an email address provided by Licensee, registered mail, personal delivery or renowned express courier (such as DHL, Fedex or UPS). Any such notice will be deemed to be effective (i) on the day the notice is sent to Licensee via email, (ii) upon personal delivery, (iii) one (1) day after deposit by express courier, (v) or five (5) days after deposit in the mail, whichever occurs first.
16.9. Governing Law. This Agreement will be governed by the laws of Republic of Mauritius, without reference to conflict of laws principles. Licensee agrees that any litigation relating to this Agreement may only be brought in, and will be subject to the jurisdiction of, any relevant competent court of Republic of Mauritius.
For exceptions or modifications to this Agreement, or for any questions concerning this EULA, or if you want to contact ZEN PROGRAM for any reason, please contact us directly at: ZEN PROGRAM LTD Registration number: Grand Baie Business Quarter, Suite 204, Chemin Vingt Pieds, Grand Bay 30529, Mauritius, Republic of Mauritius, Registration number:124892 C1/GBL Company or at “support at ndepend dot com”.