LICENSE.md

Non-Confidential Source Code License Agreement THIS SOURCE CODE LICENSE AGREEMENT (THIS "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND BIGCOMMERCE PTY. LTD. ("BIGCOMMERCE"). IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL "LICENSEE" REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND "LICENSEE" REFERS TO THAT ENTITY. BY DOWNLOADING, COPYING, MODIFYING OTHERWISE USING THE DIGITAL ASSETS IN THIS REPOSITORY (THE "APPLICABLE BC SOFTWARE"), YOU ACKNOWLEDGE THAT YOU ARE AT LEAST 18 YEARS OF AGE, THAT LICENSEE HAS REVIEWED AND ACCEPT THIS AGREEMENT, AND THAT LICENSEE AGREES TO BE BOUND BY ALL OF ITS TERMS. IF YOU ARE NOT 18 YEARS OF AGE OR IF LICENSEE DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, NEITHER YOU NOR LICENSEE ARE AUTHORIZED TO DOWNLOAD, COPY OR OTHERWISE USE THE APPLCIABLE BC SOFTWARE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU DOWNLOAD THE APPLICABLE BC SOFTWARE (THE "EFFECTIVE DATE").

1. Definitions. 1.1. "Documentation" means BigCommerce's technical documentation and supporting materials relating to the Licensed Code, if any, and any modifications to or derivative works of the foregoing developed by or for Licensee. 1.2. "Feedback" means all reports and other materials, information, ideas, concepts, feedback and know-how concerning the Licensed Code and/or Documentation. 1.3. "Intellectual Property Rights" means copyright rights (including, the right to use, the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the right to make, use, sell, offer for sale and import), trade secrets, moral rights, right of publicity, right of privacy, authors' rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether those rights arise under the law of the United States or any other state, country or jurisdiction throughout the world. 1.4. "Licensed Code" means (i) the Source Code versions of the Applicable BC Software provided to Licensee by BigCommerce under this Agreement; (ii) the test code and test scripts provided to Licensee by BigCommerce for use with the Applicable BC Software; (iii) any modifications to or derivative works of the foregoing developed by or for Licensee; and (iv) any Updates or Upgrades provided by BigCommerce to Licensee. 1.5. "Open Source Software" means software delivered to Licensee hereunder that is subject to the provisions of any open source license agreement, which may include, without limitation, the GNU Lesser General Public License and the Mozilla Public License. 1.6. "Source Code" means programming code that can be printed or displayed in a form readable and understandable by a computer programmer of ordinary skills. 1.7. "Updates" means any bug fixes or error corrections to the Applicable BC Software. 1.8. "Upgrades" means any new versions of the Applicable BC Software other than Updates.
2. Licenses. 2.1. License Grant. Subject to the terms and conditions of this Agreement, BigCommerce grants to Licensee a non-exclusive, non-transferable, non-sublicenseable license to (i) use, reproduce, modify and create derivative works of the Source Code of the Licensed Code and (ii) execute the Licensed Code; and (iii) use, reproduce, modify and create derivative works of the Documentation; in each case of (i), (ii) and (iii) only for Licensee's internal business purposes. 2.2. License Restrictions and Requirements. Licensee shall not: (a) remove from any copies of the Licensed Code or Documentation any product identification, copyright or other notices; (b) use the Licensed Code or derivative works thereof to develop products and services that compete with any BigCommerce products or services; or (c) disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Licensed Code or Documentation; 2.3. Upgrades and Updates. BigCommerce shall not be obligated to develop or deliver any Updates or Upgrades to Licensee. 2.4. Support. Nothing herein shall require BigCommerce to provide any technical or other support for the Licensed Code. Any technical support provided will be an accommodation to Licensee, and shall not create an obligation for BigCommerce to provide further technical support. 2.5. Open Source. Licensee shall not allow or cause any Licensed Code to become subject to any "copyleft," open source or similar licensing or distribution models. Any Open Source Software provided to Licensee is provided on an "as-is" basis at the sole risk of Licensee. Notwithstanding any language to the contrary in this Agreement, BigCommerce makes no express or implied warranties of any kind with respect to any Open Source Software provided to Licensee and shall not be liable for any damages regarding the use or operation of the Open Source Software furnished under this Agreement. Any and all express or implied warranties, if any, arising from the license of Open Source Software shall be those warranties running from the third-party manufacturer or licensor to Licensee.
3. Delivery; Acceptance. 3.1. Delivery. BigCommerce shall deliver or make available the Licensed Code and Documentation via download from a BigCommerce administered repository. 3.2. Acceptance by Licensee. Licensee accepts the Licensed Code and Documentation upon delivery.
4. Ownership. BigCommerce retains all right, title and interest, including all Intellectual Property Rights, in and to the Licensed Code and Documentation. BigCommerce reserves all rights not expressly granted to Licensee by BigCommerce under this Agreement. There are no implied rights. Licensee shall promptly notify BigCommerce in writing upon its discovery of any unauthorized use or infringement of BigCommerce's Intellectual Property Rights in or to the Licensed Code, Documentation. Licensee hereby assigns and agrees to assign to BigCommerce all right, title and interest worldwide in any modifications to and derivative works of the Licensed Code and/or Documentation made by or for Licensee (all of which are deemed licensed back to Licensee under the terms of this Agreement), and agrees to assist BigCommerce, at BigCommerce's expense, in perfecting and enforcing these rights.
5. Fees and Taxes. 5.1. Fees. There shall be no fees payable by Licensee for the use of the Licensed Code and Documentation as permitted under the terms of this Agreement. 5.2. Taxes. Licensee is responsible for the payment of all export, excise, sales, use, property and other taxes based on the transactions under this Agreement or the fees paid hereunder, including license fees, other than taxes imposed upon or measured by BigCommerce's net income. If BigCommerce has the legal obligation to pay or collect taxes for which Licensee is responsible pursuant to this Section, BigCommerce will invoice the amount of such taxes to Licensee and Licensee agrees to pay such amount, unless Licensee provides BigCommerce with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Evaluation Feedback. The purpose of this license is testing and evaluation of the Licensed Code. In furtherance of this purpose, Licensee shall provide feedback to BigCommerce concerning the functionality and performance of the Licensed Code from time to time as reasonably requested by BigCommerce, including, without limitation, (a) identifying potential errors and improvements and (b) providing information and data required to reproduce a problem or, if such information and data cannot be disclosed, providing BigCommerce with an alternative means to reproduce the problem (collectively, "Feedback"). Licensee will provide Feedback in a manner that is mutually agreeable to the parties. BigCommerce may use Feedback, without restriction in any manner now known or in the future conceived, to improve, enhance and/or promote its products and, accordingly, and Licensee grants a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license (with the right to sublicense) to (i) use, copy, reproduce, disclose, distribute, modify, publicly display, prepare derivative works of and otherwise exploit the Feedback (or any modification thereto), in whole or in part, in any format, medium or application, and (ii) to make, use, permit others to use, sell, offer to sell, import and export any product or service that incorporates the Feedback, in whole or in part.
7. Warranty and Warranty Disclaimer. 7.1. Power and Authority. BigCommerce represents and warrants that it has full corporate power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted in this Agreement. 7.2. Warranty Disclaimer. (a) THE LICENSED CODE AND DOCUMENTATION IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY TYPE OR KIND. BIGCOMMERCE EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND THOSE ARISING FROM COURSE OF DEALING, CUSTOM, CONDUCT, USAGE OF TRADE OR OTHERWISE. BigCommerce does not warrant that the Licensed Code or Documentation will be error-free or will meet Licensee's needs or requirements. (b) The Licensed Code licensed hereunder is a prerelease product and is not at the level of performance or compatibility of a final, commercially available product, and a primary purpose of this beta testing license is to obtain feedback on the performance of the Licensed Code. Licensee acknowledges that (i) BigCommerce has not publicly announced the availability of the Licensed Code, (ii) such Licensed Code may contain features currently under development, (iii) BigCommerce has not promised or guaranteed to Licensee that such Licensed Code will be announced or made available to anyone in the future, (iv) BigCommerce has no express or implied obligation to Licensee to announce or introduce the Licensed Code, and (v) BigCommerce may, in its discretion, decide not to introduce a product similar to or compatible with the Licensed Code. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Licensed Code or any product, service or software associated with the Licensed Code is done entirely at Licensee's own risk. Specifically, the Licensed Code may contain features, functionality or modules that may not be included in the generally available commercial version of the Licensed Code, if released, or that will be marketed separately for additional fees.
8. Limitation of Liability. 8.1. Consequential Damages Waiver. IN NO EVENT WILL BIGCOMMERCE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS AND LOSS OF USE, ARISING OUT OF OR RELATING THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF BIGCOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. 8.2. Cap on Direct Damages. IN NO EVENT WILL BIGCOMMERCE'S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED IN THE AGGREGATE THE AMOUNTS RECEIVED BY BIGCOMMERCE FROM LICENSEE UNDER THIS AGREEMENT.
9. Term and Termination. 9.1. Term. This Agreement commences on the Effective Date and, unless terminated sooner in accordance with Section 9.2 of this Agreement, continues in effect thereafter. 9.2. Termination. If a party materially breaches this Agreement and fails to cure the breach within 10 days after written notice of breach is given to it by the other party, the notifying party may terminate this Agreement upon further written notice of termination. Either party may terminate this Agreement for convenience on 15 days' notice to the other party. 9.3. Effect of Termination. Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Licensee pursuant to this Agreement will automatically and immediately terminate; (ii) Licensee shall immediately destroy or, if requested by BigCommerce, return all Licensed Code, Documentation, intellectual property furnished under this Agreement, and any BigCommerce confidential information, (iii) Licensee will have an officer of Licensee promptly certify to BigCommerce in writing that Licensee has fully complied with the requirements of this subsection; and (iv) Licensee shall cease to use all Intellectual Property Rights of BigCommerce and its Licensed Code and Documentation provided or made available under to this Agreement. 9.4. Survival. Sections 1 ("Definitions"), 4 ("Ownership"), 5 ("Fees and Taxes"), 7 ("Warranty and Warranty Disclaimer"), 8 ("Limitation of Liability"), 9 ("Term and Termination") and 11 ("General Provisions") shall survive termination of this Agreement.
10. OFAC; ANTI-CORRUPTION. 10.1. OFAC Compliance. Licensee represents and warrants that neither it nor any individual, entity, or organization holding any material ownership interest in it, nor any of its officers or directors or those of its subcontractors, is an individual, entity, or organization with whom any United States law, regulation, or executive order prohibits United States companies and individuals from dealing, including names appearing on the United States Department of the Treasury's Office of Foreign Assets Control's ("OFAC") Specially Designated Nationals and Blocked Persons List (the "SDN List"), SDN List. Licensee covenants to the other party that it shall not cause such party to be in violation of any regulation administered by OFAC. 10.2. Anti-Corruption. (a) In connection with the performance of this Agreement, Licensee represents that it and anyone acting on its behalf, including any relevant subsidiaries, affiliates, officers, directors, employees and agents, as applicable (collectively, "Associated Persons"), are now and will remain in compliance with all laws relating to bribery and/or corruption ("Anti-Corruption Laws"). Licensee further represents that, in connection with the performance of this Agreement, Licensee and Licensee Associated Persons have not undertaken, and agree that they will not undertake, directly or indirectly, to offer, promise, give, or pay anything of value (including, but not limited to money, gifts, travel, entertainment, or employment) in order to: i. influence improperly any acts, decisions, or omissions made by any officer, employee, agent, or representative of any government, majority government-owned or controlled entity, or government instrumentality, public international organization, regulatory authority, or any person acting in an official capacity, including any political party, candidate, official, or representative of a political party to obtain or retain business, or secure an improper advantage; ii. induce any individual to act improperly in violation of their duty to their principal, whether a public or private entity; or iii. facilitate or expedite government action. (b) Licensee represents that it has kept, and agrees that it will keep accurate books, records, and accounts in connection with its performance under this Agreement, including payment and other transaction records and all other material documents in accordance with its internal procedures, in reasonable detail, and with documentation sufficient to identify amount, purpose, and recipients, as applicable, and other material terms. (c) Licensee shall at all times during the term of this Agreement have a corporate policy which communicates internally the need for compliance with applicable Anti-Corruption Laws, sets out good practices that Licensee staff should follow, and that rigorously enforce any breach of such policy or laws. (d) If Licensee becomes aware of any facts or information that could support a reasonable suspicion that a breach of this Section has occurred or is reasonably likely to occur or Licensee or its Associated Persons are subject to any inquiry, investigation or allegation by any governmental authorities or regulators with regard to any actual or alleged breach of the Anti-Corruption Laws, it will immediately notify BigCommerce in writing. (e) Upon notification in accordance with the provision above, or if BigCommerce otherwise becomes aware of any facts or information that it believes support a reasonable suspicion that a breach of the Anti-Corruption Laws has occurred or will occur, absent any action by the parties to prevent such anticipated breach to the satisfaction of BigCommerce, BigCommerce may terminate this Agreement immediately upon written notice to Licensee.
11. General Provisions. 11.1. Relationship. The relationship between the parties will be that of independent contractors. Nothing contained herein will be construed to imply a joint venture, principal or agent relationship, or other joint relationship, and neither party will have the rights, power or authority to create any obligation, express or implied, on behalf of the other. 11.2. Governing Law. The laws of the State of California govern all matters arising out of or relating to this Agreement. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 11.3. Attorneys' Fees. In the event any proceeding or lawsuit is brought by either party in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its costs, expert witness fees and reasonable attorneys' fees, including costs and fees on appeal. 11.4. Assignment. Licensee may not transfer or assign its rights under this Agreement without the prior written consent of BigCommerce. Any attempted assignment or transfer in violation of this Section is void. 11.5. 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 on behalf of the party against whom the waiver is asserted. 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. 11.6. Severability. If any term or provision of this Agreement will be found to be invalid, illegal or unenforceable, the remainder of the provision will be amended to achieve as closely as possible the economic effect of the original term and the validity, legality, or enforceability of the remaining terms and provisions will not in any way be affected or impaired thereby. 11.7. Export Compliance. Licensee will not export, directly or indirectly, the Licensed Code, or any portion thereof in any form, to any country for which United States laws or regulations require an export license or other governmental approval, without first obtaining such license or approval. Licensee hereby will indemnify and hold BigCommerce harmless from and against any losses, damages, penalties or causes of action resulting from a violation of this Section 11.7. 11.8. Notices. Except as specifically provided herein, all notices required hereunder will be in writing and will be given by personal delivery, nationally recognized overnight delivery service or by mail (certified or registered, postage prepaid, return receipt requested) to the parties at their respective addresses set forth on the first page of this Agreement, or to any party at such other addresses as will be specified in writing by a party to the other party in accordance with this Section 11.8. All notices will be deemed effective upon personal delivery, or seven days following deposit in the mail, or three business days following deposit with any delivery service in accordance with this Section 11.8. 11.9. Injunctive Relief. It is expressly agreed that a violation of this Agreement will cause irreparable harm to BigCommerce and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, BigCommerce will be entitled to an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions of this Agreement, without the need to post bond. 11.10. Force Majeure. Neither party will be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communications or utility failures, or casualties. 11.11. Entire Agreement; Amendment. This Agreement, including all Exhibits, reflects the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous understanding or agreements between the parties, whether written or oral. This Agreement will not be amended, altered or changed except by written agreement signed by both parties that identifies itself as an amendment to this Agreement. 11.12. Construction of Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole. The word "including" is not limiting and will be deemed to be followed by the wording "without limitation." 11.13. Controlling Language. This Agreement is prepared an executed in the English language only, which language shall be controlling in all respects. Any translations of this Agreement into any other language are for reference only and shall have no legal or other effect. Any notice which is required or permitted to be given by one party to the other under this Agreement will be in the English language and will be in writing. All proceedings related to this Agreement shall be conducted in the English language.