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0 < View All Legal AgreementsXCELERATE & MARKETPLACE DEVELOPMENT TERMS < View All Legal Agreements
1 The following Xcelerate & Marketplace Development Terms (the Development Terms) forms a part of the Xcelerate & Marketplace Master Terms (the Master Terms) that together with any Additional Terms constitutes a binding agreement between the entity or individual with the necessary rights to make the Extension available on the Marketplace (Developer or you) and Magento, Inc. (Magento). Capitalized terms are either defined where the text is bolded and in italics, in the last paragraph of the Master Terms or in a Partner Agreement that you may have agreed to. These Development Terms are available at HTTPS://MAGENTO.COM/LEGAL/TERMS/MARKETPLACE-XCELERATE .
2 1. Extension Ratings and Display. The Marketplace will allow users to rate Extensions. Along with other factors, Extension ratings may be used to determine the placement of Extensions on the Marketplace with higher rated Extensions generally given better placement, subject to Magento’s right to change placement at Magento’s sole discretion. Magento reserves the right to display Extensions to users in a manner that will be determined at Magento’s sole discretion.
3 2. Acceptance Testing. Magento shall have ninety (90) business days from receipt of the Extension hereunder to evaluate and accept or reject such Extension for distribution on the Marketplace (the Acceptance Testing Period). During the Acceptance Testing Period, Magento shall perform the technical review set forth in the next paragraph and, if the Extension passes such technical review, a review of the Extension’s compliance with instructions from Magento. Magento shall notify Developer in writing or via e-mail within the Acceptance Testing Period whether Magento accepts or rejects the Extension. If Magento fails to accept or reject an Extension within the Acceptance Testing Period, such Extension shall be deemed rejected by Magento. Any acceptance of the Extension shall not prejudice Magento’s rights or limit Developer’s obligations and warranties under these Development Terms.
4 3. Technical Review. Developer is responsible for evaluating and testing the Extension and the technology, functionality, performance, security, and user interface before the Extension is eligible for technical review by Magento and, if accepted by Magento, distribution on the Marketplace. Upon submission of the Extension, Magento reserves the right (but has no obligation to you or any third party) to conduct any type of review of the Extension, including but not limited to, security testing, plagiarism review and evaluation of Developer’s coding practices.
5 4. Quality Control. All Extensions may be subject to code review, audits, performance checks and other quality-control mechanisms. Developer agrees to perform full regression testing and upgrade if necessary its products and services upon any Magento update of product prior to any major, minor and patch release of the Magento Commerce Platform (it being understood that the versioning for a “major” release is denoted using whole numbers, such as Magento 2, while minor releases are denoted using decimals, such as Magento 2.1). At all times, Developer shall ensure that the products or services that it markets through Magento are kept up to date. In addition, within thirty (30) days of a major or minor Magento Commerce Platform release, Developer shall submit an updated version of the Extension for re-validation. Magento may terminate the Master Terms and all Additional Terms if Developer’s products or services do not meet Magento’s compatibility standards.
6 5. Compatibility with Magento Commerce Platform. Developer shall be responsible for the integration and shall ensure full compatibility of the Extension with the Magento Commerce Platform. Developer shall comply with all documentation and standards made available to Developer.
7 6. Customer Service. Developer shall be solely responsible for performing, in a manner consistent with good industry practice, all technical support and maintenance services requested or required by Customers and end-user merchants of Developer’s channels that are related to the Magento Commerce Platform and services. Developer will provide all direct communications and services to and from Customers with respect to all support services. Developer will use continuous efforts, with appropriate escalation to senior management, to provide a resolution for any problem as soon as is commercially reasonable, but no later than five (5) business days.
8 7. Master Terms of Use. Developer must include a terms of use, end user license agreement and privacy policy for each Extension in accordance with the Development Terms and the Master Terms (Developer’s Commercial Terms). Developer must comply with Developer’s Commercial Terms and Developer is liable for all claims related thereto. Magento is not a party to Developer’s Commercial Terms, as Developer’s Commercial Terms are between only Developer and the Customer that downloads the Extension. Accordingly, Developer, and not Magento, is responsible for the Extension, the content therein, and any warranties or claims that any party may have relating to the Extension. Developer agrees that Developer’s Commercial Terms will not imply or state that Magento is responsible for anything related to Developer’s Extension and Developer’s Commercial Terms may not contradict the Master Terms, these Development Terms or any Additional Terms. Developer acknowledges that Magento is a third party beneficiary of Developer’s Commercial Terms and Magento has the right to enforce Developer’s Commercial Terms.
9 8. Third-Party Service Providers. Developer may use third party services from Third-Party Service Providers that Developer has contracted with to provide services. Developer shall be responsible for the services and fees for the Third-Party Service Providers pursuant to its separate agreements and Developer shall be responsible for integrating with the Third-Party Service Providers in accordance with the terms and conditions of a mutually agreed upon statement of work. Magento does not provide warranties, guaranties or indemnification regarding any Third-Party Service Providers or any of their products or services, regardless of whether Magento had involvement in Developer’s introduction to such Third-Party Service Provider. Any exchange of data or other interaction between Developer and a Third-Party Service Provider or use of the products or services of a Third-Party Service Provider by Developer is solely between Developer and such Third-Party Service Provider.
10 9. Payment Method. All payments due to Developer pursuant to the Master Terms shall be made to a PayPal account designated in writing by Developer. You may be responsible for establishing and maintaining a commercial relationship with PayPal in order to receive any payments. The terms of any such relationship shall be between you and PayPal and such terms may be more restrictive or place limits on your operations. You should contact PayPal for more information regarding such terms. Throughout the Term, in order for Magento to deliver the services, Magento may engage Third-Party Service Providers to provide payment services and make payments to you via PayPal. You will not be required to make an election to utilize these Magento Third-Party Service Providers, or to enter into separate agreements. You acknowledge and agree that: (i) all amounts due Magento hereunder, or pursuant to any other services agreement entered into between you and Magento, will be deemed earned by Magento, as applicable, on the date the applicable services (or goods) are provided by or on behalf of Magento; and (ii) Magento has the express, continuing and immediate right to offset any and all amounts due Magento hereunder, or pursuant to any other services agreement entered into between you and Magento, against amounts payable to you as set forth herein. All payments made to Magento shall be in US Dollars (with no deductions for any fees) made to a bank account that Magento specifies in writing.
11 10. Taxes. Taxes, whether in the United States or any other country, now or hereafter imposed with respect to all amounts payable to Developer under the Master Terms (with the exception of income taxes or other taxes imposed upon Magento and measured by the gross or net income of Magento) shall be the responsibility of Developer and, if paid or required to be paid by Magento, the amount thereof shall be subtracted from the amounts payable to Developer. For any amounts payable to Magento, Developer shall be responsible for any additional taxes, levies, imports, duties, charges, fees and withholdings that may be required to ensure that Magento receives the exact amount it is owed under the Master Terms.
12 11. Books and Records. Developer shall maintain at its principal place of business full, accurate, and complete books of account and records reflecting all activities and transactions subject to or covered by the Master Terms. Developer shall keep such books and records in at least sufficient detail as will permit the reports required under the Master Terms to be made and the fees and amounts payable hereunder by Developer to be determined. Magento will have the right, during normal business hours and upon at least ten (10) Business Days’ prior notice, to have an independent audit firm selected by Magento inspect Developer’s servers and premises and audit Developer’s records relating to the administration of the Master Terms in order to verify that Developer has paid Magento the correct amounts owed under the Master Terms and otherwise complied with the terms of the Master Terms. If a discrepancy of more than ten-percent (10%) in the amount owed to Magento is discovered, Developer shall reimburse Magento for the full, reasonable cost of such an audit. The terms in this paragraph will not apply to Developers that have signed up to a Partner Agreement. Developers that do not have or no longer have an effective Partner Agreement will continue to be subject to this paragraph.
13 12. Extension Ownership. Magento acknowledges that between Magento and Developer, Developer owns all rights in the Extension. You agree that the Extension you submit to the Marketplace does not infringe any intellectual property right of any third party or any applicable law or regulation, and will not contain any material from a third party, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to distribute the material. Magento may publish the Extension you submit through the Marketplace, but is not obligated to do so.
14 13. Publishing the Extension to the Marketplace. Developer authorizes Magento to publish the Extension on the Marketplace and grants to Magento a worldwide, non- exclusive, royalty-free, sublicenseable right during the Term to offer, offer to sell, sell, copy, reproduce, display, perform, transmit, distribute, create derivative works, commercialize and use the Extension for the purposes of making the Extension available on Marketplace (which includes use of Developer’s font, color selections and logo).
15 14. Allowing Customers to Use the Extension. Developer authorizes Customers to use the Extensions and grants to Customers a worldwide, irrevocable, non-exclusive, right to use the Extension in accordance with the Developer’s Commercial Terms and the Master Terms. For clarity, any right granted to Customers during the Term shall not be affected by the termination of the Master Terms and Customers shall continue to have the right to use the Extension on the same terms.
16 15. Magento’s Use of the Extension. To assist Developer and to allow Magento to operate a healthy Marketplace, Magento will also need to use the Extension and any associated External Services for internal testing development and training purposes. Developer hereby grants Magento, a worldwide, non-exclusive, royalty-free, sublicenseable right during the Term to develop and test the Extension and the External Services to support Magento’s Marketplace operations. If Developer joins a “Technology Partner” or “Extension Builder” program (as detailed in the Partner Agreement), Magento shall also have a right to use such a copy of the Extension for Magento’s own external business purposes within and outside the Marketplace (as if Magento is one of the Developer’s standard customers) (Production Usage). Developer hereby grants Magento a non-exclusive, royalty-free, worldwide right to use the Extension and External Services for Production Usage and Developer will provide Magento with such Extension or External Service without charge. For any Production Usage of the Extension, Magento may agree to Partner’s standard commercial terms and pay for any professional service fees if needed.
17 16. Developer Representations. You represent and warrant that you have all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to the Extension. If you use third-party materials, You represent and warrant that you have the right to distribute the third-party material in the Extension. You agree that you will not submit material to Marketplace that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to submit the material. Furthermore, Developer represents and warrants that its Developer Data and its activities on the Magento Commerce Platform shall not, in Magento’s sole and reasonable discretion: (a) infringe any third party’s rights, including copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; or (b) violate any law, statute, ordinance or regulation.
18 17. Magento’s Consultants. Magento may use consultants and other contractors in connection with the performance of obligations and exercise of rights under this agreement. After the Term, Magento will not distribute your Extension, but may retain and use copies of the Extension for support of the Marketplace and Customers.
19 18. License to Magento Commerce Platform. Subject to the terms and conditions of the Master Terms, during the Term, Magento hereby grants to Developer a restricted, non-exclusive, personal, nontransferable, nonsublicensable, royalty-free, revocable right to use the Magento Commerce Platform that Magento provides to you (by providing you with credentials): (i) solely in a non-production capacity for the Developer’s own internal evaluation, development and testing of the Magento Commerce Platform and its Extension and for no other business purpose, and (ii) in accordance with the documentation and instructions provided by Magento. The access and rights granted under this Section 18 are limited to one project with 3 development environments, each with 5 gigabytes of allocated storage capacity. Developers may request modifications to these limitations (e.g. additional projects, environments or storage), but any changes may be subject to service fees, as determined in Magento’s sole discretion. Except as set forth in this paragraph, no other right or license of any kind is granted by Magento to Developer hereunder with respect to the Magento Commerce Platform. If Developer provides any suggestions, feedback or other information regarding the Magento Commerce Platform to Magento (“Feedback”), Magento shall be free to use, disclose, transfer or license such Feedback as Magento sees fit without any obligation of any kind to Developer. Magento may immediately suspend or revoke access to the Magento Commerce Platform if it determines, in its sole discretion, that doing so is necessary to comply with any applicable law or policy or if Developer has violated any exclusion, restriction, limitation or other aspect of the Master Terms.
20 19. No Warranty for Magento Commerce Platform. THE MAGENTO COMMERCE PLATFORM IS PROVIDED “AS IS” AND MAGENTO DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND INDEMNITIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE MAGENTO COMMERCE PLATFORM OR THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, COMPLETENESS, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MAGENTO AND ITS THIRD PARTY LICENSORS DO NOT WARRANT THAT: (A) THE MAGENTO COMMERCE PLATOFMR OR ITS CONTENT WILL BE AVAILABLE, SECURE, ACCURATE, ERROR-FREE OR UNINTERRUPTED; (B) THE MAGENTO COMMERCE PLATFORM MEETS OR WILL MEET DEVELOPER’S REQUIREMENTS; (C) DATA STORED ON THE MAGENTO COMMERCE PLATFORM WILL BE ACCURATE, AVAILABLE OR RELIABLE; (D) ERRORS OR DEFECTS WILL BE CORRECTED; (E) THE PRODUCTS, SERVICES OR THE SYSTEMS THAT MAKE THE MAGENTO COMMERCE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (F) THE MAGENTO COMMERCE PLATFORM WILL WORK WITH OTHER SOFTWARE OR HARDWARE COMPONENTS.
21 20. No Support for Magento Commerce Platform. Developer agrees that Magento has no obligation to provide any bug fixes, new releases, updates, maintenance or other technical support relating to the Magento Commerce Platform. In the event that Magento, in its sole discretion, provides an update to the Magento Commerce Platform, such update will be deemed part of the Magento Commerce Platform and will be subject to the terms and conditions of these Development Terms. Without limiting the foregoing, Magento will provide commercially reasonable technical support to Developer’s sandbox environments, however such support will be limited to four (4) support tickets per month.
22 21. Ownership. Magento owns and shall retain all right, title and interest in the MAGENTO IP, including all intellectual property rights therein, including, without limitation, any enhancements, improvements, inventions, derivative works and other modifications created by or for Magento relating to the Magento Commerce Platform (but excluding Modifications and Partner Data). Other than the explicit rights granted herein, nothing in the Master Terms shall be construed or interpreted as granting to Developer any rights or licenses, including any rights of ownership or any other proprietary rights, in or to the Magento IP or any portion of any of the foregoing, including any intellectual property rights therein. If any right, title or interest arises or vests at any time in Developer to the Magento IP, Developer hereby assigns to Magento all such right, title and interest. To the extent any of the rights, title and interest in and to the Magento IP cannot be assigned by Developer to Magento, Developer hereby grants to Magento an exclusive, royalty-free, transferable, perpetual, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to practice and exploit fully such Magento IP (including all intellectual property rights that may subsist in such Magento IP). Developer shall do all acts and things (including the execution and delivery of patent, trademark, and copyright applications and instruments of assignment) at any time deemed by Magento to be necessary or desirable in order to effect the full assignment or license (if applicable) of the Magento IP to Magento. In order to give effect to the foregoing assignments and licenses, Developer hereby irrevocably designates and appoints Magento and its duly authorized officers and agents as Developer’s agent and attorney-in-fact, to act for and on Developer’s behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of any such letters, patent, copyright, trademark registrations and other analogous protection thereon with the same legal force and effect as if executed by Developer. Developer acknowledges that this power of attorney is coupled with an interest, in that Magento has an interest in Magento IP that is the subject of the power, and that as a result, in addition to any other consequences under law, this power is irrevocable and will survive Developer’s incapacity or incompetence. Except as set forth herein, no right, title or interest in the Extension is transferred to Magento by means of the Master Terms; provided such Extension does not contain any Magento IP.
23 22. Magento Commerce Platform Restrictions. Developer shall not (and shall not allow any third party to), without the prior written consent of Magento: (a) copy all or any portion of the documentation relating to the Magento Commerce Platform (b) decompile, disassemble or otherwise reverse engineer the Magento Commerce Platform, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Magento Commerce Platform or any portion thereof; (c) distribute, disclose, market, rent, lease, assign, sublicense, pledge, encumber or otherwise transfer or make available the Magento Commerce Platform, in whole or in part, to any third party; (d) use the Magento Commerce Platform for production purposes or any other business purpose other than as set forth in Section 18; (e) use the Magento Commerce Platform for the purpose of hosting, developing or trailing any applications that are not a variant of, extension of or customization of the Magento Commerce software or undertake any performance testing or automated load testing; or (f) use Magento Commerce Platform with open source software in a manner that imposes or could impose any other material limitation, restriction, or condition on Magento’s right or ability to exploit the Magento Commerce software.
24 23. Modifications. Magento also grants Developer the right to create Modifications to the Magento Commerce Platform solely to exercise the license grants in Section 18 and for no other purpose. As an express condition of this right and the other licenses granted by Magento hereunder: (i) in the course of creating Modifications or using the Magento Commerce Platform, Developer shall not use, host, support or assist in the use of Magento Open Source (ii) in the course of creating Modifications, Developer shall not use any copyleft open source software code; and (iii) Developer hereby grants to Magento, a non-exclusive, royalty-free, transferable, perpetual, irrevocable (irrespective of the expiration or termination of the Master Terms) worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to intellectual property rights in the Modifications to reproduce, creative derivative works of, modify, use, distribute, perform, display, make, have made, sell, offer to sell, import or otherwise exploit any Modifications. For clarity, the license in clause (iii) of the preceding sentence is intended to provide Magento with the freedom to operate and does not obligate Developer to deliver, transfer, or otherwise disclose the Modifications or any technology or materials related thereto to Magento. Subject to the foregoing, Developer shall own any Modifications. As an express condition of the rights granted hereunder, Developer irrevocably waives and agrees to never assert any intellectual property rights, or any other right in such Modifications, against Magento or its direct or indirect customers or sublicensees.
25 24. Developer Data. Developer agrees to permit Magento (on a non-exclusive worldwide basis), to access and store the Developer Data for the following limited purposes: (i) as necessary to provide the Magento Commerce Platform to Developer; (ii) to improve the Magento Commerce Platform; and (iii) to perform analyses related to the performance and use of the Magento Commerce Platform. The foregoing limited permissions shall extent to any Magento subsidiaries or affiliate entities, and to all employees or contractors performing work for Magento.
26 25. Use of Magento Marks by Developer. Subject to the terms and conditions of the Master Terms, and upon Developer’s election to license the Extension and Documentation branded with the “Magento” plain word mark and Magento “Square Device” logo (the Authorized Marks), Magento grants to Developer, during the Term, a nonexclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses except as expressly set forth in the Master Terms) to use and reproduce the Authorized Marks, solely in connection with marketing the Magento Commerce Platform and solely in accordance with the Master Terms. Developer acknowledges and agrees that the Authorized Marks belong to Magento and are a part of a group of many Magento trademarks and trade names (together with the Authorized Marks, the Magento Marks). Magento grants no rights in the Magento Marks other than those expressly granted for the Authorized Marks in this paragraph. Developer acknowledges Magento’s exclusive ownership of the Magento Marks. Developer agrees not to take any action inconsistent with Magento’s ownership of the Magento Marks and to cooperate, at Magento’s request and expense, in any action (including the conduct of legal proceedings), which Magento deems necessary or desirable to establish or preserve Magento’s exclusive rights in and to the Magento Marks. Developer will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Magento Marks or use the Magento Marks in such a way as to create combination marks with the Magento Marks. Upon Magento’s request, Developer will provide Magento with samples of all Developer’s materials that contain the Magento Marks prior to their public use, distribution, or display for Magento’s quality assurance purposes and will obtain Magento’s written approval before such use, distribution, or display. At Magento’s request, Developer will modify or discontinue any use of the Magento Marks if Magento determines that such use does not comply with the Master Terms. Developer acknowledges and agrees that, except with respect to the limited trademark license granted to the Magento Marks herein, no licenses are granted by Magento to any other trademarks, service marks, or trade names owned by Magento or its Affiliates. The goodwill based on the use of any Magento Marks, directly or indirectly, by Developer inures solely to the bene it of Magento and its Affiliates. The Magento Marks shall be the sole and exclusive property of Magento.
27 26. Use of Developer Marks by Magento. Subject to the terms and conditions of the Master Terms, Developer grants to Magento the limited, non-exclusive, non- transferable, sublicenseable right during the term of the Master Terms to use the trademarks, trade names, logos and other proprietary indicia owned or licensed by Developer associated with Developer or Developer’s Extensions and External Services, as well as descriptions of Developer’s Extensions and External Services, in marketing materials and communications and in connection with Marketplace or other Magento websites, applications or services for the purposes of marketing, selling, distributing or providing services related to Developer’s Extensions or External Services.
28 27. Privacy Rights of Customers. You agree that if you use the Marketplace to distribute Extensions and make any External Services available to Customers, you will protect the privacy and legal rights of Customers. If the Customers provide you with, or your Extension or External Service accesses or uses, Customer names, passwords, or other login information or personal information, you must make the Customers aware that the information will be available to your Extension, and you must provide legally adequate privacy notice and protection for those Customers. Further, your Extension or External Service may only use that information for the limited purposes for which the Customer has given you permission to do so. If your Extension or External Service stores personal or sensitive information provided by Customers, it must do so securely and only for as long as it is needed. But if the Customer has opted into a separate agreement with you that allows you or your Extension or External Service to store or use personal or sensitive information directly related to your Extension (not including other products or applications) then the terms of that separate agreement will govern your use of such information. If the Customer provides your Extension with Magento information, your Extension may only use that information to access the user’s Magento account when, and for the limited purposes for which, the Customer has given you permission to do so. If Magento assesses in its sole discretion that the receipt, processing, storage, usage or other handling of any personal information of Customers by you or the Extension requires amending the Master Terms or entering into additional agreements between you and Magento to protect the Customer’s privacy rights, you agree to such amendment or agreement without undue delay.
29 28. Prohibited Actions. You agree that you will not engage in any activity with the Marketplace, including the development or publication of Extensions or other materials, that violates the Master Terms, or that: (a) knowingly violates a third party’s terms of service; (b) violates any applicable laws or regulations; (c) interferes with, disrupts, damages, harms, or accesses in an unauthorized manner the machines, hardware, devices, servers, networks, data, or other properties or services of any third party including, but not limited to, Magento users, Magento or any network operator; (d) creates a spammy user experience, whether by posting repetitive content or misleading information about an application’s purpose; (e) infringes on the intellectual property rights of others; (f) enables the unauthorized download of streaming content or media; (g) displays (via text, images, video, or other media) or links to: (i) illegal content; (ii) invasions of personal privacy or violations of the right of publicity; (iii) content that interferes with the functioning of any servers, networks, or services of other parties; (iv) promotions of hate or incitement of violence (v) violations of intellectual property rights, including patent, copyright, trademark, trade secret, or other proprietary right of any party, or (vi) pornography, obscenity, nudity, or sexual activity.
30 29. Your Conduct. You agree that you are solely responsible for (and that Magento has no responsibility to you or to any third party for) any Extensions you publish in the Marketplace and for the consequences of your actions (including any loss or damage which Magento or any third party may suffer) by doing so. You agree that you are solely responsible for (and that Magento has no responsibility to you or to any third party for) any breach of your obligations under the Master Terms, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Magento or any third party may suffer) of any such breach.
31 30. Marketing Your Extension. You will be responsible for uploading your Extensions to the Marketplace, providing required Extension information to users, and accurately disclosing the security permissions necessary for the Extension to function on user machines, hardware, or other devices. Extensions that are not properly uploaded will not be published in the Marketplace.
32 31. Developer Indemnification. Developer shall indemnify, defend and hold harmless Magento and its Affiliates, and each of Magento and its Affiliates’ respective officers, directors, employees, agents, successors and assigns against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, Losses) arising out of or resulting from any third party claim, suit, action or other proceeding related to or arising out of or resulting from: (a) Developer’s breach of any representation, warranty, covenant or obligation under the Master Terms or any Additional Terms; (b) the gross negligence or intentional misconduct of Developer or Developer’s employees or agents; or (c) Developer’s Extension or any External Service infringing any third- party intellectual property right. Magento shall give prompt written notice to Developer of any third party claim for which Magento seeks indemnification under this paragraph; provided, however, that the failure of Magento to give timely notice hereunder will not affect any rights hereunder, except to the extent that Developer is materially prejudiced by such failure. So long as Developer employs counsel of recognized standing and reasonably acceptable to Magento which counsel pursues the applicable claim diligently and vigorously, Magento shall tender Developer, and Developer shall retain, the sole control over the defense of the indemnified claim and any negotiations for its settlement or compromise, including the right to employ counsel to defend any such proceeding, and to compromise, settle or otherwise dispose of the same, if Developer deems it advisable to do so, all at the expense of Developer; provided, that Developer shall not settle, or consent to any entry of judgment in, any proceeding without obtaining either: (i) an unconditional release of Magento (and, if applicable, its Affiliates and each of their respective officers, directors, employees and agents) from all liability with respect to all claims underlying such proceeding; or (ii) the prior written consent of Magento, which consent will not be unreasonably withheld or delayed. Magento shall reasonably cooperate with Developer in any such proceeding, at Developer’s expense.
33 LAST UPDATED: FEBRUARY 26, 2018
34 XCELERATE & MARKETPLACE MASTER TERMS
35 Your acceptance of the following Xcelerate & Marketplace Master Terms (the Master Terms) creates a binding agreement between the entity or individual with the necessary rights to make the Extension available on the Marketplace (Developer, you or your) and Magento, Inc. (Magento), each, a Party and together, the Parties. Capitalized terms are either defined where the text is bolded and in italics, in the last paragraph of these Master Terms, in the Development Terms or in a Partner Agreement that you may have agreed to. These Master Terms govern: (a) your use of the Marketplace and the distribution of your Extensions on the Marketplace; (b) your use of Magento Commerce Platform; (c) your provision of any External Services; and (d) any additional matters addressed in the Additional Terms or additional programs that you may agree to as detailed in a separate partner agreement (Partner Agreement). These Master Terms also include the Xcelerate & Marketplace Development Terms (the Development Terms) and any Partner Agreement you may have or will agree to, each of which is incorporated by reference and available at HTTPS://MAGENTO.COM/LEGAL/TERMS/MARKETPLACE-XCELERATE .
36 1. Developer Benefits. Welcome to the Magento community! We are thrilled that you will be contributing to the Magento ecosystem and invite you to participate in various technology partnership, sponsorship and other programs that you can use to promote sales, enable a superior Customer experience and generally drive success. To learn more, visit HTTPS://MAGENTO.COM/BECOME-A-PARTNER . Any such benefits or additional terms may be set out in a separate Partner Agreement.
37 2. Marketplace Earnings. Unless otherwise specified in the Partner Agreement, if you make your Extension available on the Marketplace and a Customer pays Magento through the Marketplace for the download, purchase, installation or use of such Extension, Magento will remit to you an amount equal to seventy percent (70%) of the Initial Revenue actually received and not subject to any potential refund or Chargeback for these Extensions. Such remittance will typically be made within sixty (60) days after Magento has provided you with a statement detailing the Initial Revenue in a given month. Magento may adjust any future invoice or issue a subsequent invoice to account for refund requests that are granted by Magento, and any applicable Chargebacks that occur. Any amounts collected by Magento that are subject to a refund or Chargeback may be deducted or set-off against present or future amounts of Initial Revenue. You understand that you are solely responsible for any support, maintenance, and customer service related to the Extensions. You also understand and agree that your use of the Marketplace is subject to Magento’s policies on acceptance testing, technical review and third-party service providers as set forth in the Development Terms. The aggregate outstanding amount payable by Magento to Developer pursuant to this Section shall be payable Developer by Magento sixty (60) days after Magento has provided you with a statement detailing such amounts after the earlier of: (i) such amounts exceed $100 USD; or (ii) the end of the then current calendar year.
38 3. Services Fee. Unless otherwise specified in the Partner Agreement, if you make your Extension available on Marketplace in connection with a service, product or offering that is external to the Marketplace (External Service) or otherwise market such External Services through the Marketplace, you will remit to Magento an amount equal to thirty-percent (30%) of the gross revenue that you receive in connection with such External Services. Professional services that are charged on an hourly basis aren’t included in this calculation. No less frequently and no later than fifteen (15) days after the end of a calendar quarter, you will send Magento a report detailing all such gross revenues received in connection with the External Service during such calendar quarter and within thirty (30) days of such report, remit the applicable amounts to Magento. The terms in this paragraph will not apply to Developers that have signed up to a Partner Agreement as a “Technology Partner”. Developers that do not have or no longer have an effective Partner Agreement will continue to be subject to this paragraph.
39 4. Software and Trademarks. The terms on which both of us will use each other’s software and trademarks are detailed in the Development Terms. Do not use any “Magento” badge or any other Magento Mark if either Party has terminated these Master Terms. During the Term, Developer represents, warrants and covenants that it will provide to Magento with the most current version of its technology that it makes generally available to any of its customers.
40 5. Extension News and Information. We appreciate your contribution to the Magento ecosystem, and we may from time to time share certain news or information about Magento and the Magento Commerce Platform such as new product launches or special features or other business or technical information about Magento or the Magento Commerce Platform (Magento Information). Although some of this information may eventually be made public, until such time that we make the information public, you shall: (a) keep such Magento Information in the strictest of confidence; (b) not disseminate or disclose the Magento Information to any third party, or to any employee, agent, contractor without a need to know; (c) not use the Magento Information for any purpose other to further the goals that relate to such Magento Information (as communicated by Magento); (d) protect the Magento Information with the same care that you use to protect your own sensitive information; and (e) remind all your employees, agents and contractors to do all of the foregoing.
41 6. Term and Termination. These Master Terms are effective on the date that you accepted these Master Terms (either through a click-through or signature) or signed the Partner Agreement, whichever is earlier (Effective Date) and will continue until these Master Terms are terminated by either Party in accordance with this paragraph (the Term). Magento may terminate these Master Terms, terminate distribution of an Extension or suspend Developer‘s access to the Marketplace or the Magento Commerce Platform, in each case immediately without notice, at any time in Magento’s sole discretion. Developer may terminate these Master Terms for any reason upon thirty (30) days prior written notice to Magento. Developer may terminate a Partner Agreement independently without affecting these Master Terms or the Developer’s right to publish Extensions on the Marketplace; provided that all of the Partner Agreement-specific benefits will immediately stop upon termination of a Partner Agreement. Upon termination of a Partner Agreement without a termination of these Master Terms: (a) Developer will once again be subject to the thirty-percent (30%) revenue share obligation for External Services as set forth in Section 3 of these Master Terms; (b) Developer will once again be subject to the audit rights under Section 11 of the Development Terms; (c) all benefits specified in a Program Guide will cease (Magento may cancel any other commitments, contracts, discounts or incentives that relate to the Program Guide or Partner Agreement in its sole discretion; and (d) all amounts due to Magento for the duration of the Term will immediately become payable. If Magento terminates the Partner Agreement for any reason, these Master Terms (including Developer’s right to use the Marketplace) will also simultaneously be terminated. Any termination of these Master Terms will automatically result in a simultaneous termination of a Partner Agreement.
42 7. Effect of Termination. Upon any termination of these Master Terms: (a) all rights and licenses granted to Developer by Magento will automatically and immediately cease, including Developer’s right to access the Marketplace and use of the Magento Commerce Platform; (b) Magento shall remove the Extension from Marketplace without undue delay; (c) all rights in the Extension granted to Magento by Developer hereunder shall revert to Developer; (d) Magento’s right to distribute the Extension will cease; (e) each Party shall cease all use of the other Party’s logos and trademarks and destroy or deliver all materials in their control or possession; and (f) Developer will destroy any Magento Information it has in its possession. Magento reserves the right to, upon request, to have Developer deliver to Magento all copies and extracts of the foregoing and any and all documents, notes and other materials relating to Developer’s testing and evaluation of the Magento Commerce Platform. Developer shall not be entitled to any refund or partial refund of any amounts paid under these Master Terms. Any amounts owed to Developer under these Master Terms before such termination or expiration (less any costs, expenses, fees, Customer refunds, damages or other liabilities arising from Developer’s Extensions or Developer’s performance under or breach or termination of these Master Terms) will be due and payable by Magento within sixty (60) days of termination. Any amounts owed to Magento under these Master Terms before such expiration will be due and payable by Developer upon such termination. If Developer continues to use any of the Magento Marks after the termination of these Master Terms (including, without limitation, any of the Authorized Marks such as “Magento” or “Magento” badges) in violation of this paragraph, Developer agrees that such use constitutes an infringement of Magento’s trademark rights and in addition to any other legal or equitable remedies Magento may have, Developer agrees that, at a minimum, it will liable to Magento for the same revenue share or partner program fee obligations and the provisions applicable to the Developer’s payment of such fees during the Term. For clarity, any use by Developer of the Magento Marks after termination of these Master Terms is not licensed by Magento and an express breach of the license granted for the Magento Marks and nothing in the foregoing sentence shall create any implied license for such use. Notwithstanding anything to the contrary, if these Master Terms terminate for any reason: (y) in no event shall any Customer have any obligation to delete, remove or otherwise destroy copies of the Extensions (except as expressly provided in the Developer’s Commercial Terms); and (z) the Developer’s Commercial Terms and the licenses to all Extensions granted to Customers under such terms or agreements prior to the date of termination of these Term shall survive any termination or expiration of this Agreement.
43 8. Governing Law. These Master Terms, and your relationship with Magento under these Master Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Magento agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from these Master Terms. Notwithstanding this, you agree that Magento shall still be allowed to apply for any legal, equitable or injunctive remedies (or an equivalent type of legal relief) in any jurisdiction.
44 9. Wavier and Severability. You agree that if Magento does not exercise or enforce any legal right or remedy which is contained in these Master Terms (for which Magento has the benefit of under any applicable law), this will not be taken to be a waiver of Magento’s rights and that those rights or remedies will still be available to Magento. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Master Terms are invalid, then that provision will be removed from these Master Terms without affecting the rest of these Master Terms. The remaining provisions of these Master Terms will continue to be valid and enforceable.
45 10. These Master Terms. You represent and warrant that you have full power, capacity, and authority to accept these Master Terms. If your Marketplace account has been registered on behalf of your employer or the Extensions are owned by your employer or another entity, you are agreeing to be bound by these Master Terms on behalf of your employer or other such entity, you represent and warrant that you have full legal authority to bind your employer or such entity to these Master Terms. If you do not have the requisite authority, you may not accept these Master Terms or use the Marketplace on behalf of your employer or other entity.
46 11. Independent Development. Nothing in these Master Terms will impair Magento’s right to (a) develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that Developer may develop, produce, market, or distribute or (b) authorize or engage others to do any of the foregoing.
47 12. Our Relationship. The relationship between the Parties is that of independent contractors. Regardless of the use of the word “partner” herein to refer to a Party or in the title of this Agreement, nothing contained in these Master Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Developer also certifies that Developer is of the legal age of majority in the jurisdiction in which Developer resides (at least 18 years of age in many countries).
48 13. Assignment. Developer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Master Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Magento’s prior written consent. No delegation or other transfer will relieve Developer of any of its obligations or performance under these Master Terms. Any purported assignment, delegation or transfer in violation of paragraph is void. Magento may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under these Master Terms without Developer’s consent. These Master Terms are binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
49 14. LIMITATION OF LIABILITY. EXCEPT FOR DEVELOPER’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS UNDER THE MASTER TERMS (INCLUDING THE PARTNER AGREEMENT, DEVELOPMENT TERMS OR ANY ADDITIONAL TERMS) OR A BREACH OF THE LICENSES GRANTED BY MAGENTO HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR ANY CLAIMS OF LOST OR ANTICIPATED PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DEVELOPER’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF THE LICENSES GRANTED BY MAGENTO HEREOF, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY OF THE ADDITIONAL TERMS EXCEED THE TOTAL AMOUNTS PAID OR OWED BY MAGENTO TO DEVELOPER UNDER THESE TERMS DURING THE TWELVE (12) MONTHS PRECEDING THE EVENTS FIRST GIVING RISE TO THE CLAIM.
50 15. Notices. Any notice required or permitted to be sent hereunder, unless otherwise stated herein, shall be made in writing and shall be deemed delivered if transmitted via email on the next business day after such e-mail was transmitted. Notices may be delivered to Developer at the primary contact email specified in Developer’s Marketplace account. Notices may be delivered to Magento at LEGAL@MAGENTO.COM .
51 16. Third Party Beneficiaries. Magento’s affiliates are intended third party beneficiaries of these Master Terms, and each such affiliate may enforce any of Magento’s rights under these Master Terms. Magento’s affiliates, as may be identified by Magento from time to time, may perform Magento’s obligations and receive performance from Developer under these Master Terms.
52 17. General. These Master Terms together with any applicable Magento Commerce Platform Licenses constitute the whole legal agreement between you and Magento and governs your use of the Marketplace, Magento Commerce Platform, Magento Information, External Services and completely replaces any prior agreements between you and Magento in relation to such matters. These Master Terms states the entire agreement between the Parties with respect to the subject matter hereof. Both Parties acknowledge and agree that they are not entering into these Master Terms based upon any representations other than those contained herein. Both Parties have had the opportunity and ability to consult legal counsel of their own choosing. In the event of a conflict between these Master Terms and the Magento Commerce Platform Licenses or any other agreement or contract you may have with Magento, these Master Terms will control to the extent of such conflict. These Master Terms shall be interpreted in accordance with its terms and without any strict construction in favor of or against either Party. In addition, Magento may be sending communications to Developer from time to time. Such communications may be in the form of phone calls and/or emails and may include, but not be limited to, marketing materials, technical information, and updates and/or changes regarding Developer’s participation as a Developer. By agreeing to these Master Terms, Developer consent that Magento may provide Developer with such communications.
53 18. No Damages for Termination. MAGENTO WILL NOT BE LIABLE TO THE DEVELOPER OR ANY OTHER PARTY FOR DAMAGES OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THESE MASTER TERMS, THE PARTNER AGREEMENT, THE DEVELOPMENT TERMS AND ANY ADDITIONAL TERMS. DEVELOPER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THESE MASTER TERMS, THE PARTNER AGREEMENT, THE DEVELOPMENT TERMS OR ANY ADDITIONAL TERMS. DEVELOPER AGREES THAT MAGENTO WILL NOT BE LIABLE TO DEVELOPER ON ACCOUNT OF TERMINATION OR EXPIRATION OF THESE MASTER TERMS, THE PARTNER AGREEMENT, THE DEVELOPMENT TERMS AND ANY ADDITIONAL TERMS FOR REIMBURSEMENT OR DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED INCOME, OR ON ACCOUNT OF ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE BY MAGENTO OR FOR ANY OTHER REASON WHATSOEVER BASED UPON OR GROWING OUT OF SUCH TERMINATION.
54 19. Additional Terms. In addition, Magento reserves the right, at its discretion, to modify these Master Terms, including any rules and policies, at any time by posting notice of such changes to the legal page found at HTTPS://MAGENTO.COM/LEGAL/TERMS/MARKETPLACE-XCELERATE . You will be responsible for reviewing and becoming familiar with any such modifications (including new terms, updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions) (collectively, the Additional Terms) communicated to Developer or posted by Magento. The Additional Terms include: (a) the Development Terms; and (b) any Partner Agreements between Developer and Magento. All Additional Terms are hereby incorporated into these Terms by this reference and Developer’s continued use of Marketplace will indicate Developer’s acceptance of any Additional Terms. In the event of a conflict between these Master Terms and any Additional Terms, these Master Terms shall control to the extent of the conflict, except where Magento and Developer have specifically agreed to override these Master Terms. If Developer does not agree with these Master Terms or any Additional Terms: (i) Developer shall immediately provide written notice to Magento of its termination of these Master Terms, which shall be Developer’s sole and exclusive remedy, and (ii) all of Magento’s obligations and all rights granted to Developer under these Master Terms shall immediately cease. Additional Terms will become effective, and will be deemed accepted by Developer, (a) immediately for those who become Developers after the notification is posted, or (b) for pre-existing Developers, on the date specified in the notice, which will be no sooner than 10 days after the changes are posted (except changes required by law which will be effective immediately).
55 20. Definitions. The following defined terms shall have the following meanings.
56 Additional Revenue means, following the initial sale of a Developer Extension, the Gross Revenue from the sale of all additional products and services related to the performance and usability of such Developer Extension (including, but not limited to, recurring charges, subscription fees, usage based fees, referral revenue, add on fees, upgrades and affiliate fees). For clarity, “Additional Revenue” shall not include: (i) sales prior to the date of these Master Terms; (ii) sales on your website unrelated to such Developer Extension; (iii) the sale of support or installation services; and (iv) any Initial Revenues.
57 Chargeback means a reversal of a credit card or debit card (or other payment method) charge in connection with an Order.
58 Customers means any individual, entity or person who accesses or uses software on the Marketplace.
59 Developer Data shall mean all data uploaded by Developer to the Magento Commerce Platform, but excluding any Modifications, that may be accessed or used by Magento in connection with the provision of the Magento Commerce Platform hereunder.
60 Extension(s) means Developer’s product or service that is provided by you to be purchased or downloaded through Marketplace, together with any provided documentation. Extensions and External Services do not include any Magento Commerce Platform.
61 Gross Revenue means all cash and equivalent consideration received from orders or other purchases of Developer’s Extensions, goods and/or services.
62 Initial Revenue means the Net Revenue from the initial sale of a Developer Extension on the Magento Marketplace (including the initial cost of the Developer Extension and any additional fees (e.g. recurring charges, subscription fees and usage based fees)). For clarity, “Initial Revenue” shall not include: (i) sales of a Developer Extension prior to the date of this Agreement; (ii) the initial sale of a Developer Extension on your website; (iii) sales on your website unrelated to the initial sale of a Developer Extension; (iv) the sale of support or installation services, and (v) any Additional Revenue.
63 Magento Commerce Platform shall mean the online platform-as-a-service (PaaS) product commonly known as Magento Commerce, used for the creation and rapid deployment of customizable, secure and scalable web storefronts, combined with a hosting and managed services infrastructure, including, subject to Section 20 of the Master Terms, all corrections, versions and releases of any of the foregoing made widely available to Magento’s partners in Magento’s sole discretion.
64 Magento IP means the Marketplace, Magento Information, Magento Commerce Platform, Magento Marks and any intellectual property or technology associated with any of the foregoing.
65 Marketplace means the Magento Extension Marketplace at the Magento website, as may be modified by Magento from time to time.
66 Modifications means any modification, supplement, enhancement, addition or derivative work based on or related to the software code available through the Magento Commerce Platform or any other content used therewith that is developed by Developer (or any third party on behalf of Developer), including without limitation, any software related to the configuration, integration, implementation, or localization of the Magento Commerce Platform.
67 Net Revenue means Gross Revenue, less the following: taxes, returns, Chargebacks and any costs and/or expenses related to any returns or Chargebacks.
68 Third-Party Materials means software or intellectual property owned by third-parties, including software licensed on open source terms.
69 Third-Party Service Provider means a third party other than Magento that provides services.
70 LAST UPDATED: FEBRUARY 26, 2018 Magento Marketplace Customer Agreement
71 PLEASE READ THE FOLLOWING CAREFULLY BEFORE PURCHASING ANY PRODUCTS OR SERVICES THROUGH WWW.MAGENTO.COM OR ANY RELATED WEBSITES (collectively, the “Site”).
72 The following Magento Marketplace Customer Agreement ("Agreement") is a contract between you and Magento, Inc. ("Magento") and sets forth the terms on which Magento provides Extensions (defined below) downloaded through Magento Marketplace (defined below). The Magento Marketplace is the property of Magento, Inc. (“Magento”) and its licensors. This Agreement is effective when you click the acceptance button presented with these terms. If you are entering into this Agreement on behalf of an entity, such as the company you work for, by accepting this Agreement, you are representing and warranting that you have the legal authority to bind that entity. You hereby waive any applicable rights to require an original, non-electronic, signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. IF YOU DISAGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE MAGENTO MARKETPLACE.
73 Magento may in its sole discretion add, remove, change and/or modify this Agreement at any time. Any changes are effective after we provide you with at least thirty (30) days’ notice of the changes by posting the changes to the Site or sending you notice of changes by email. As long as you comply with this Agreement, Magento grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Magento Marketplace.
74 1. Definitions
75 "Affiliate" means any entity that controls, is controlled by or is under common control with Magento, where "control" means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies and operations of such entity, whether through ownership of voting securities, by contract or otherwise.
76 "Content” means any information that may be generated or encountered through use of the Magento Marketplace, such as user interfaces, visual interfaces, trademarks, logos, data files, device characteristics, written text, software, graphics, photographs, images, sounds, artwork, messages and computer code, including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site.
77 "Developer” means a third party that develops Extensions for users.
78 "Extension" means a product or service that is purchased or downloaded through the Magento Marketplace, together with any provided documentation. Extensions include, but are not limited to, development modules, add-ons, language packs, design interfaces and themes.
79 "Free Extensions" means Extensions licensed and distributed on Magento Marketplace or by Magento community members for no charge.
80 "Magento Marketplace" means both the Magento Connect and Magento Marketplace at the Site (see www.magentocommerce.com/magento-connect/ and https://marketplace.magento.com/ ).
81 "Magento Software” means the proprietary software developed by Magento designed to implement certain connected features when integrated with or distributed in conjunction with Developer’s Extension pursuant to this Agreement, and all derivatives thereof.
82 "Marks" means trademarks, including registered and common law trademarks, trade names, service marks, logos, domain names and designations owned, licensed or used.
83 "Paid Extensions" means Extensions licensed and distributed on Magento Marketplace or by Magento community members for a charge.
84 "Third-Party Service Provider” means a third party other than Magento that provides services.
85 "We," "us" or "our" means Magento, Inc.
86 "You" or "your" means you and/or the company or other legal entity for which you are accepting this Agreement.
87 "Your Information" is defined as any information you provide to Magento in any public area (including, without limitation, the Magento discussion boards or the feedback area) or through any communication. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.
88 2. Program Overview
89 Magento Marketplace is a marketplace that allows Magento community members to share their free Extensions and/or paid Extensions with the Magento community.
90 3. Eligibility and Acceptable Use [or Plagiarism] Guidelines
91 In order to access Magento Marketplace or certain password-restricted areas of the Site (such as forums, contributing Materials including reviews, commenting on reviews, and current or future features of the Site) and to use certain services and materials offered on and through the Site, you must register with Magento for an account. You are solely responsible for maintaining the confidentiality and security of your account, and for all activities that occur on or through your account, and you agree to immediately notify Magento of any security breach of your account. Magento shall not be responsible for any losses arising out of the unauthorized use of your account. As an account holder and user of Magento Marketplace, you agree to comply with the Plagiarism [or Extension] guidelines and you acknowledge that Magento has the right to enforce those guidelines in addition to this Agreement as it deems appropriate in its sole discretion.
92 You agree to provide accurate and complete information when you register with, and as you use, the Magento Marketplace ("Registration Data"), and you agree to update your Registration Data to keep it accurate and complete. You agree that Magento may store and use the Registration Data you provide for use in maintaining and billing fees to your account.
93 4. Licenses
94 4.1 License of Magento Marketplace Extensions. The software Extensions made available through the Magento Marketplace are licensed, not sold, to you. The Extensions have been developed, and are licensed to you, by a third-party Developer.
95 Your license to each Developer’s Extension is subject to the licensed Extension end user license agreement entered into between you and the Developer of that Extension. The Extension Developer reserves all rights in and to the Extension not expressly granted to you. You acknowledge that you are acquiring the license to each third-party Extension from the Developer. The Developer of each Extension is solely responsible for that Extension, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that Extension.
96 You acknowledge and agree that Magento is a third-party beneficiary of the Developer’s end user license agreement. You also agree that, upon your acceptance of the terms and conditions of the license to any such Extension, Magento will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third-party beneficiary thereof. Magento has no obligation to provide updates or upgrades to the Developer’s Extension.
97 4.2 License Restrictions. You may auto-download an Extension only once; and after being downloaded, it cannot be replaced. You may not make copies, translations, or modifications of or to the Extensions. You may not alter, obscure, or remove the copyright notice on any copy of the Extensions. You may not assign, sell, distribute, lease, rent, sublicense, or transfer the Extensions, nor may you use the Extensions in a manner that disrupts the operation of any associated services or otherwise in a manner that was intended (for example, by engaging in any unlawful activity through the Extensions).
98 You are responsible for properly configuring and using the Extensions and taking your own steps to maintain appropriate security, protection and backup of your Content, which may include the use of encryption technology to protect your Content from unauthorized access and routine archiving of your Content.
99 4.3 Our Right to use Your Content. We may use your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, and distributing it. As such, you hereby grant us the following licenses:
100 (a) a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free license, with the right to sublicense through multiple levels of sublicenses, under your intellectual property rights, to make, use, have made, sell, offer to sell, copy, reproduce, distribute, publicly perform, publicly display, digitally transmit, modify, create derivative works of, import, and otherwise exploit, any suggestions or feedback you provide to us that result in modifications, improvements or enhancements to the Magento Marketplace.
101 (b) a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Magento Marketplace any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Magento Marketplace.
102 5. Payments, Taxes, and Refund Policy
103 You agree that you will pay for all Extensions you purchase through the Magento Marketplace, and that Magento may charge your payment method for any Extensions purchased and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING MAGENTO WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES.
104 Your total price will include the price of the Extension plus any applicable tax; such tax is based on the bill-to address and the tax rate in effect at the time you download the Extension.
105 Prices for Extensions offered via the Magento Marketplace may change at any time, and Magento does not provide price protection or refunds in the event of a price reduction or promotional offering.
106 6. Refunds and Credits
107 Magento is responsible for handling all refunds and refund requests pertaining to the Developer’s Extensions. You will have twenty-five (25) days from the date of delivery of the Extension to request a refund. Magento has discretion to issue a credit or refund to you in the event that Magento determines that such credit or refund is appropriate.
108 If an Extension becomes unavailable following a transaction but prior to download, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your Extension, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by Magento.
109 7. Your Use of the Site
110 7.1 Content. Except as expressly provided in this Agreement, no part of Magento Marketplace and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Magento’s express prior written consent.
111 7.2 Restricted Activities. You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Magento Marketplace or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Magento Marketplace or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Magento Marketplace. Magento reserves the right to bar any such activity.
112 You may not attempt to gain unauthorized access to any portion or feature of the Magento Marketplace, or any other systems or networks connected to the Magento Marketplace or to any Magento server, or to any of the services offered on or through the Magento Marketplace, by hacking, password “mining” or any other illegitimate means.
113 You may not probe, scan or test the vulnerability of the Magento Marketplace or any network connected to the Magento Marketplace, nor breach the security or authentication measures on the Magento Marketplace or any network connected to the Magento Marketplace.
114 You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Magento Marketplace, or any other customer of Magento, including any Magento account not owned by you, to its source, or exploit the Magento Marketplace or any service or information made available or offered by or through the Magento Marketplace, in any way where the purpose is to reveal any information, including, but not limited to, personal identification or information, other than your own information, as provided for by the Magento Marketplace.
115 You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Magento Marketplace or Magento’s systems or networks, or any systems or networks connected to the Magento Marketplace or to Magento.
116 You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Magento Marketplace or any transaction being conducted on the Magento Marketplace, or with any other person’s use of the Magento Marketplace.
117 You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Magento on or through the Magento Marketplace or any service offered on or through the Magento Marketplace. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
118 You may not use the Magento Marketplace or any Content for any purpose that is unlawful or prohibited by this Agreement, or to solicit the performance of any illegal activity or other activity, which infringes the rights of Magento or others.
119 You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Magento Marketplace (or any part thereof) for any purpose.
120 Your information and your activities on Magento Marketplace shall not, in Magento’s sole and reasonable discretion: (a) be false, inaccurate or misleading or reflect negatively on Magento; (b) be fraudulent; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; or (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising).
121 8. Purchases; Other Terms and Conditions
122 Particular Extensions, components or features of Magento Marketplace provided by Magento and/or its licensors, may be subject to separate software or other license agreements or terms of use of Third-Party Service Provider(s). You must read, accept, and agree to be bound by any such separate agreement as a condition of using Magento Marketplace and any particular components or features of the Site. If there is a conflict between this Agreement and the terms posted for or applicable to a specific portion of the Magento Marketplace or for any service offered by a Third-Party Service Provider on or through the Magento Marketplace, this Agreement shall control with respect to your use of that portion of the Magento Marketplace or the specific service.
123 Magento’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on the Magento Marketplace should be construed to alter such agreements.
124 Magento may make changes to any products or services offered on the Magento Marketplace, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Magento Marketplace with respect to products and services may be out of date, and Magento makes no commitment to update the materials on the Magento Marketplace with respect to such products and services.
125 9. Links and Third Party Materials
126 This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Magento’s control, and Magento is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
127 10. Ratings and Reviews
128 We may, in our sole discretion, offer a system for rating and/or reviewing Extensions listed on the Extensions directory ("Review"). In the event that we do, you may not take any actions that undermine the integrity of Magento’s rating system.
129 In making a Review, you represent and warrant that (1) you are the sole author of the Review and owner of the intellectual property rights thereto; (2) your Review is accurate to the best of your knowledge; and (3) your Review does not violate any confidentiality, non-disclosure, or contractual obligations you might have towards a third party. When your Review consists of a review or evaluation of an Extension, you further represent and warrant that (a) you are a user of the Extension being reviewed; (b) unless you prominently disclose your affiliation and interest in such Review, you are not an employee, contractor, agent, officer or director of the vendor, of the Extension for which you are submitting a review, evaluation or opinion or such vendor’s channel partner (collectively “Vendor”) or a competitor of such Vendor that offers a competitive product or service or such competitor’s channel partner (collectively “Competitor”) and otherwise have no pecuniary interest in such Vendor, Competitor or their Extension; (c) your review does not disclose any confidential information of Vendor; (d) the opinions expressed in the Review are your honest opinions, findings, beliefs and experiences with respect to the Extension; (e) the statements made in the Review are not false or misleading in any respect; and (f) the Review is not defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
130 If Magento, in our sole discretion, determines that your Review is not in compliance with this Agreement, Magento may promptly modify or remove your Review.
131 Any reviews and feedback you provide at Magento Marketplace shall be deemed to be non-confidential. Magento shall be free to use such information on an unrestricted basis.
132 11. Confidentiality
133 You further agree that the Magento Marketplace, (including the Software, or any other part thereof) contains proprietary and confidential information that is protected by applicable laws.
134 12. Intellectual Property Ownership
135 12.1 Technology. You acknowledge and agree that Magento or its licensors own all legal right, title and interest in and to Magento Marketplace, and any Magento Software provided to you as a part of and/or in connection with Magento Marketplace (the “Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. Such Software will be subject to the terms of the license agreement that accompanies the Software. Subject to the limited licenses set forth in this Agreement, nothing in this Agreement transfers or assigns to you any of Magento’s intellectual property rights in our Extensions or our other technology, software, products or services, including, without limitation, any source code to any Extensions (collectively, "our Intellectual Property").
136 12.2 Trademarks. Magento, the Magento logo, and other Magento trademarks, service marks, graphics, and logos used in connection with Magento Marketplace are trademarks or registered trademarks of Magento, Inc. in the US and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with Magento Marketplace may be the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Magento Marketplace.
137 12.3 Copyrights. Notice for Claims of Intellectual Property Violations and Agent for Notice (Digital Millennium Copyright Act)
138 Magento may in its discretion terminate the account or access of anyone who infringes the intellectual property rights of others. Magento, Inc. is registered with the United States Copyright Office as a Service Provider (refer to the Digital Millennium Copyright Act 17 U.S.C. § 512). If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide Magento's designated agent with the following information:
139 a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
140 identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);
141 identification or description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it;
142 your address, telephone number, and email address;
143 a statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright or intellectual property owner, its agent, or the law;
144 a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
145 Magento's agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows:
146 By Mail: Attn: Magento Registered DMCA Agent
147 Magento, Inc.
148 54 N. Central Avenue
149 Campbell, CA 95008
150 By e-mail: copyright@magento.com
151 Magento has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of Magento and/or others.
152 13. No Warranty
153 SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND MAGENTO’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
154 WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE MAGENTO MARKETPLACE AND OPERATION OF THE MAGENTO MARKETPLACE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. EXCEPT AS EXPRESSLY STATED HEREIN, MAGENTO DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MAGENTO DOES NOT REPRESENT OR WARRANT THAT THE SITE, OR ANY EXTENSION WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. THE SITE AND ANY EXTENSIONS PROVIDED BY MAGENTO HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND THE SITE AND EXTENSIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. YOU ASSUME TOTAL RESPONSIBILITY AND ALL RISKS FOR YOUR USE OF THE SITE AND ANY EXTENSIONS.
155 The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
156 Magento reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Magento Marketplace or any portion of the Magento Marketplace, for any reason; (2) to modify or change the Magento Marketplace or any portion of the Magento Marketplace, and any applicable policies or terms; (3) to interrupt the operation of the Magento Marketplace, or any portion of the Magento Marketplace, as necessary to perform routine or non-routine maintenance, error correction, or other changes; or (4) block any user’s right to access the Magento Marketplace or any user name, user handle or other identifier, which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity.
157 14. Limitation of Liability
158 MAGENTO, OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, EMPLOYEES AND SUPPLIERS WILL HAVE NO DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN THE EVENT THAT THE ABOVE IS NOT ENFORCEABLE, MAGENTO'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE NUMBER OF CLAIMS, RELATED OR NOT, IS LIMITED TO AMOUNTS PAID OR PAYABLE TO MAGENTO BY YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE EVENTS FIRST GIVING RISE TO THE CLAIM.
159 15. Indemnity
160 You agree to indemnify and hold Magento, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Magento by any third party due to or arising out of or in connection with your use of the Magento Marketplace.
161 BY USING MAGENTO MARKETPLACE, YOU AGREE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO WAIVE ANY CLAIMS YOU MAY HAVE AGAINST MAGENTO, AND TO HOLD MAGENTO HARMLESS AND INDEMNIFY MAGENTO WITH RESPECT TO ANY CLAIMS RELATING TO ANY ACTION TAKEN BY MAGENTO AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE MAGENTO OR RECOVER ANY DAMAGES WHATSOEVER FROM MAGENTO AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO MAGENTO MARKETPLACE, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF MAGENTO’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
162 16. Violation of Terms
163 Magento may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Magento Marketplace, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Magento’s rights or property, or the rights or property of visitors to or users of the Magento Marketplace, including Magento’s customers. Magento reserves the right at all times to disclose any information that Magento deems necessary to comply with any applicable law, regulation, legal process or governmental request. Magento also may disclose your information when Magento determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
164 You acknowledge and agree that Magento may preserve any transmittal or communication by you with Magento through the Magento Marketplace or any service offered on or through the Site, and may also disclose such data if required to do so by law or Magento determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce this Agreement, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Magento, its employees, users of or visitors to the Site, and the public.
165 17. Suspension or Termination
166 17.1 Termination by Magento. You agree that Magento may, in its sole discretion and without prior notice, terminate your access to the Magento Marketplace and/or block your future access to the Magento Marketplace if we determine that you have violated this Agreement or other agreements or guidelines, which may be associated with your use of the Magento Marketplace. You may not use the Magento Marketplace to impersonate or misrepresent yourself as another person, a Magento employee, or otherwise misrepresent your affiliation with a person or entity (Magento reserves the right at any time to reject, reclaim, modify or block any user, user name, user handle or other identifier, which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity, or for any other reason at Magento’s sole discretion).
167 You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice, and will cause irreparable harm to Magento, for which monetary damages would be inadequate, and you consent to Magento obtaining any injunctive or equitable relief that Magento deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Magento may have at law or in equity.
168 You agree that Magento may, in its sole discretion and without prior notice, terminate your access to the Magento Marketplace, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Magento Marketplace or any service offered on or through the Magento Marketplace, or (4) unexpected technical issues or problems.
169 If Magento does take any legal action against you as a result of your violation of this Agreement, Magento will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Magento. You agree that Magento will not be liable to you or to any third party for termination of your access to the Magento Marketplace as a result of any violation of this Agreement.
170 17.2 Your Termination. You may terminate your account and/or stop using the Magento Marketplace at any time. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
171 17.3 Effect of Termination. Upon termination of your account, you lose all access to the Magento Marketplace, any data stored thereon, and your account name and Content. You agree upon termination of this Agreement to destroy the Extensions, together with all copies, modifications, and merged portions in any form, including any copy in your computer memory or on a hard disk. Magento will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to Magento Marketplace.
172 18. No Agency
173 You and Magento are independent contractors, and this Agreement does not create any agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship. You will not represent otherwise.
174 19. Notices
175 Magento may send you notices with respect to the Magento Marketplace by sending an e-mail message to the email address listed in your contact information. Notice shall be deemed given 24 hours after the email is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Magento during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
176 20. Law and Venue
177 This Agreement will be construed as if both parties jointly wrote it, governed by California law except for its conflicts of laws principles, and any cause of action arising under or relating to this Agreement must be brought exclusively in a court in Santa Clara County, California. However, this will not affect your statutory rights if you are a consumer and the competent court determines that applicable consumer law requires application of another law (such as the law of your country of residence).
178 21. For Non-U.S. Users of the Services
179 Orders for Extensions may be accepted and/or processed by Magento, Inc., a Delaware corporation, or any of its subsidiaries or affiliates. The personal information, which you give to Magento when registering for Magento Marketplace or placing any order for Extensions will be used in connection with your use of the Magento Marketplace or fulfilling your order, and will be transferred to and maintained in Magento’s records in the United States. If you do not consent to this transfer, do not accept this Agreement.
180 22. Privacy Policy
181 You understand that by using Magento Marketplace, you consent and agree to the collection and use of certain information about you and your use of the Magento Marketplace in accordance with Magento’s Privacy Policy. For more information, please read our full privacy policy at www.magento.com/company/privacy . You further understand and agree that this information may be transferred to the United States and/or other countries for storage, processing and use by Magento and/or its Affiliates.
182 Certain Extensions may include functionality that enables you to acquire content on a subscription basis. We may ask for your permission to provide the name, email address and zip code listed in your account to the Third-Party Service Provider so that the Third-Party Service Provider can send you marketing messages about its own products in accordance with its publicly posted privacy policy. Once the Third-Party Service Provider has this information, it will be treated in accordance with the Third-Party Service Provider’s privacy policy. We encourage you to learn about the privacy practices of the Third-Party Service Provider before agreeing to give it your personal information. For more information, please review the Third-Party Service Provider’s privacy policy or contact the Third-Party Service Provider directly.
183 23. Export
184 You agree to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that neither the Extensions nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws; or (2) are used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
185 24. Miscellaneous
186 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You may also be subject to separate terms that may apply when you use affiliate services, third-party content, or third-party software. You agree that this Agreement and all incorporated agreements may be automatically assigned by Magento in accordance with Section 19 "Notices", in our sole discretion. This Agreement will bind your successors but may not be assigned, in whole or part, by you without the written approval of an authorized representative of Magento. Any non-conforming assignment shall be null and void. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
187 Sections 1 (Definitions), 11 (Confidentiality), 12 (Intellectual Property Ownership), 17 (Suspension or Termination), 6 (Refunds & Credits), 13 (No Warranty), 14 (Limitation of Liability), 15 (Indemnity), 20 (Law & Venue), 22 (Privacy Policy) and 24 (Miscellaneous) shall survive any termination or expiration of this Agreement.
188 The parties hereto confirm that they have requested, acknowledge, and agree that this Agreement and all attachments and related documents be drafted in English.
189 LAST UPDATED: NOVEMBER 2015