Installatron Server Licensing Agreement

Last Revised: March 05, 2012

  1. Witnesseth
    1. Installatron ("Installatron") is engaged in (among other things) the business of providing certain hosting software and technical support services.
    2. This Licensing Agreement (this "Agreement") is entered into by and between Installatron and you ("Licensee") and is made effective as of the date of acceptance. This Agreement sets forth the terms and conditions for your use of the Installatron Server software ("Services") and for partnering with Installatron.
    3. The term "Licensed Server" shall refer to any server operating from an IP address identified by Installatron as a licensed server.
    4. The term "Internal Servers" shall refer only to the servers owned or leased by Licensee; the term "External Servers" shall refer to all other servers.
    5. The terms "we", "us" or "our" shall refer to Installatron.
    6. The terms "you", "your", or "Licensee" shall refer to any individual or entity who accepts this Agreement.
    7. All prices herein are US dollars.
  2. Term and Termination
    1. This Agreement is in effect for one (1) year from the Effective Date of this Agreement and will automatically renew for one (1) year increments unless notice of non-renewal is given by either party within thirty (30) days prior to the renewal date.
    2. Installatron, in its sole and absolute discretion and without liability to Licensee, may change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, in whole or in part, and such changes or modifications shall be effective upon 90 calendar days' written notice to the Licensee.
    3. In the event that Installatron believes that Licensee has materially breached any obligations under this Agreement, or Licensee fails to enact changes or modifications to the Agreement, Installatron will notify Licensee of the breach. Licensee shall have 90 calendar days from the receipt of notice to cure the alleged breach and to notify Installatron that cure has been effected. Installatron may terminate this agreement effective upon 90 calendar days' notice to the Licensee if the Licensee commits any material breach of this Agreement that remains uncured during such notice period. Examples of material breach include but are not limited to non-payment of any amount when due and failure to prohibit access to Services by any non-licensed entity.
    4. Upon the termination of this Agreement for any reason, Installatron will be entitled to immediately cease providing Services to Licensee, Licensee will cease providing the Services to its customers, and all amounts due to Installatron will become immediately due and payable. Notwithstanding the termination of this Agreement for any reason, the provisions of this Agreement that by their nature survive termination will continue to apply.
    5. Installatron may choose to deliver any notification to Licensee electronically by e-mail or physically by a traditional courier.
  3. License of Services
    1. Subject to the terms and conditions of this Agreement, only during the term hereof, and provided that Licensee continues to satisfy the terms and conditions of this Agreement, Installatron grants Licensee a non-exclusive, non-transferable license to provide Services to its customers worldwide, except where prohibited by law.
    2. Licensee is strictly prohibited from the sale, resale, transfer, sublicensing, installation, or use of Services on External Servers.
  4. Services Prices
    1. Licensee will be invoiced on the 1st of each month for the number of Licensed Servers on that date. There is no prorating of partial usage.
    2. The price per month per Licensed Server is outlined under the "Dedicated Server" pricing table at the URL link contained below.
      http://installatron.com/plugin/buy#bulk
      Contact sales@installatron.com to learn about further licensing discounts for more than 50 Licensed Servers.
    3. Technical-level support is included in the standard licensing cost, however developer-level support is not included. A Minimum Monthly Spend of $100 can be applied to any month where developer-level support is required.
    4. In the event the total due from Services is less than the applicable Minimum Monthly Spend, Licensee is required to pay Minimum Monthly Spend in lieu of the total due from Services.
  5. Billing
    1. Licensee will be invoiced on the 1st of each month as per Services Prices.
    2. Licensee agrees that invoices are due and payable upon receipt of invoice. Additionally, Licensee agrees to pay Installatron in full no later than fifteen days after the date the invoice is sent (the "Due Date"), unless otherwise agreed upon in writing by both parties.
  6. Use of Licensee's Name and Logo
    1. Licensee agrees Installatron may use Licensee's company name and logos in Installatron promotional material and on the Installatron website, subject to Licensee's prior review and approval of each use.
    2. Licensee agrees Installatron may include Licensee's corporate name, website address, logo, and brief company description in the Installatron Partner Directory at http://installatron.com/partners
  7. Customer Support
    1. Licensee agrees to act as the first support contact for Licensee's customers. In the event Licensee is unable to answer a customer, Licensee or customer can contact Installatron directly for further assistance. Common issues are outlined at the below URL.
      http://installatron.com/docs/admin/troubleshooting
    2. Installatron shall have no obligation whatsoever to provide technical support for any issue unrelated to Services, including, but not limited to, problems caused by reliant software, such as Apache, PHP or MySQL. Support for web applications installed by Installatron may be available directly from Installatron, however there are no guarantees because many issues are beyond Installatron's control and can only be resolved by the web application developer.
  8. Export Restrictions
    1. Licensee agrees that Licensee is prohibited by law from exporting to certain countries, and shall comply with all export regulations if shipping to another country, including licensing requirements.
  9. Unauthorized Use
    1. Licensee will immediately notify Installatron upon discovery of any unauthorized use or copying of Installatron products or services.
  10. Confidentiality
    1. Licensee will exercise a reasonable level of care and discretion to prevent and restrain the use, disclosure, or reproduction of any "confidential information," including any nonpublic information that Installatron designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential by Licensee. "Confidential information" includes, but is not limited to, information in tangible or intangible form relating to and/or including released or unreleased products, the marketing or promotion of any Installatron products, Installatron's business policies or practices, and information received from others that Installatron is obligated to treat as confidential.
  11. No Solicitation
    1. Licensee is prohibited from approaching Installatron's employees with proposals to hire them as Licensee's employees or contractors.
  12. WARRANTIES
    1. Installatron expressly reserves the right to deny, cancel or transfer Services that Installatron deems necessary, in its discretion, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Installatron, as well as its affiliates, subsidiaries, officers, directors and employees.
    2. THE SERVICES AND THE APPLICATIONS PROVIDED BY SERVICES ARE DELIVERED TO LICENSEE "AS IS" AND WITH ALL FAULTS. INSTALLATRON DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS LICENSEE MAY OBTAIN BY USING THE SERVICES. EXCEPT TO THE EXTENT ANY WARRANTY, CONDITION, REPRESENTATION OR TERM CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO LICENSEE IN YOUR JURISDICTION, INSTALLATRON MAKES NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
    3. Licensee understands that functionality, features and contents of Services can change over time, and just because a functionality, feature, or content is offered at one time does not guarantee that it will always be available.
    4. The provision of this Section 12 shall survive the termination of this Agreement.
  13. LIMITATION OF LIABILITY
    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INSTALLATRON WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF INSTALLATRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INSTALLATRON'S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY INSTALLATRON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  14. INDEMNIFICATION
    1. You shall indemnify, defend and hold harmless Installatron and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and Installatron affiliates (and their directors, officers, staff, employees and agents and their respective successors, heirs and assigns) from and against any liability, damage, loss or expense (including reasonable attorneys' fees and expenses of litigation). You will pay any and all costs, damages, and expenses, including, but not limited to, attorneys' fees and costs awarded against or otherwise incurred by Installatron or it affiliates in connection with or arising from any such claim.
  15. Publicity and Intellectual Property
    1. The Installatron programs and the content of this website are protected by international copyright laws and treaties, all rights reserved.
    2. Licensee agrees not to use any of Installatron's trademarks, trade names, service marks, corporate names or logos or those of its affiliates ("Marks") on any press release, advertising or marketing materials unless specifically authorized by Installatron. Licensee agrees not to interfere or cause any third party to interfere with Installatron's intellectual property rights. Licensee acknowledges that the use of the Marks is limited to the use set forth in this Agreement and that Licensee has not acquired and will not acquire any ownership rights therein. Licensee will not register or maintain any trademarks or domain names that are substantially similar to trademarks, domain names, or intellectual property owned by Installatron (or domain names confusingly similar thereto).
    3. Licensee understands that no part of the Installatron program or Services may not be modified and/or distributed.
    4. Licensee understands that the Services is licensed; Licensee is not buying it outright.
    5. Licensee understands that decompiling or reverse-engineering Services is prohibited.
  16. Assignment
    1. Either party may assign this Agreement at any time without a fee and without the consent of the other party to a corporate successor in interest, acquiror or other entity that purchases or obtains substantially all of the assets or stock of such party, provided that such transferee agrees in writing to be bound by the terms and conditions of this Agreement. Except as set forth above, either party may not assign or delegate this Agreement without prior written consent from the other party.
  17. Miscellaneous
    1. Notwithstanding anything to the contrary contained herein, neither the entities whose products Installatron's Services purports to install, nor the customers of Licensee, are intended to be third-party beneficiaries of this Agreement.
    2. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same other provisions hereof. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
    3. This Agreement may be executed concurrently in one or more counterparts, each of which will be an original, but all of which together will constitute one and the same instrument.
    4. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard to the conflicts of laws principles thereof.
    5. This Agreement constitutes the entire, complete and fully integrated understanding between the parties with regard to its subject matter.