Gatling Enterprise Component License
License used to publish specific Gatling Enterprise components. These components can be used free of charge outside Gatling Enterprise with certain limitations.
GATLING ENTERPRISE COMPONENT LICENSE
PLEASE READ THIS AGREEMENT CAREFULLY AS IT GOVERNS YOUR USE OF THE Component (AS DEFINED BELOW), UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE.
Thank you for using the Component developed by GATLING a French société par actions simplifiée, whose registered office is at 152-160, avenue Aristide Briand 92220 Bagneux, France, with a capital of 100 943, 60 Euros, incorporated and registered in Nanterre (France), with company number 812 810 216. (“GATLING CORP”, “we” or “us”).
By downloading the Component, you agree to all the terms and conditions of this Component License (“Agreement”).
If you are using the Component or related services on behalf of a company or other entity, then “the User” or “you” means that entity, and you are binding that entity to this Agreement. You represent that you have the legal power and authority to enter into this Agreement and that, if the User is an entity, you represent that you have the legal authority to bind that entity to this Agreement.
Please note that we may modify this Agreement as further described in the Amendment section below, so you should make sure to check this page from time to time.
This Agreement applies to all the Components that explicitly mention this license in their sources when published, in their pom.xml file when published in a maven repository (for example the Maven Central infrastructure https://central.sonatype.com/) and inside their jar package in the LICENSE file. Please, note that the license is also explicitly stated in our documentation.
1. OVERVIEW OF THE Component
GATLING CORP has developed a Component, which is its exclusive ownership. This Component is made available by downloading it from the Maven Central repository: https://central.sonatype.com/
For a description of the Component, please check the documentation on our website: https://gatling.io where you can find the description of the Components.
2. PURPOSE OF THE AGREEMENT
The Agreement defines the terms and conditions under which GATLING CORP grants the User a limited right to access and use the Component with GATLING CORP’s Open-Source Software.
3. DEFINITIONS
The terms defined hereafter shall have the following meaning:
“Component” means the product used in combination with the Open-Source Software, and any accompanying documentation provided by GATLING CORP, as and when necessary.
“Amendment” means any change to the Agreement after the Effective Date in accordance with the terms of the Agreement.
“Data” means all types of data and contents collected and/or produced by User as part of the use of the Component.
“Effective Date” means the date on which the User accesses the Component downloading it.
“Documentation” means any manual, documentation and other supporting materials related to the Component, as provided, from time to time, to User by GATLING CORP on the website gatling.io, as updated from time to time, by GATLING CORP.
“License” means the right for User to access and use the Component in accordance with the terms of the Agreement
“Enterprise Software” means GATLING CORP’s proprietary Enterprise software.
“Open-Source Software” means GATLING CORP’s open-source software, licensed under the Apache 2.0 license.
4. Component LICENSE
4.1 Scope
The Component is made available to the User, subject to the terms and conditions provided herein, for free, but its use may be limited according to certain thresholds, defined by GATLING CORP and implemented in the Component’s source code. These thresholds may change over time, in nature and/or value, at GATLING CORP’s discretion.
When any of the criteria/thresholds mentioned above have been reached, the License will automatically end and User will no longer have access to or be able to use the Plug-in in its free version.
If you want to benefit from the features of the Component without any limitation, you should use GATLING CORP’s Enterprise Software, as described on our website gatling.io. Please note that the use of the Enterprise Software will be charged and subject to the Terms and Conditions of our Enterprise Software.
4.2 Rights Granted
Subject to the terms and conditions of this Agreement, GATLING CORP grants to the User a limited, non-exclusive, non-transferable, worldwide, no-charge, royalty-free, license to access and use the Component during a one-year period unless the criteria/thresholds mentioned hereinabove have been reached before the end of this one-year period.
The User is authorized to use the Component only for its internal needs in order to test its web applications, and in accordance with the terms and conditions of this Agreement. Any right that is not expressly granted to the User is reserved to GATLING CORP.
Nothing contained in the Agreement shall be construed as conferring by implication or otherwise any right to User other than a License to access and use the Component only for the purposes expressly set forth above.
4.3 Restrictions
Except as permitted by law under article L.122-6-1 of the French Intellectual Property Code, the User must not and must not allow any third party to:
(i) Activate and/or use any Component functionality or module which is not covered by the License;
(ii) Attempt to harm or modify, in any way, any of the criteria/thresholds mentioned hereinabove to continue using the Component and/or activate additional functionalities, despite the restrictions implemented by GATLING CORP ;
(iii) Pledge, assign, sublicence, make available, sell, rent, lease, transfer, assign or redistribute the Component;
(iv) Make any other use or allow any other people to use the Component for the benefit of a third-party and/or provide any software-as-a service (SaaS), application service provider(ASP), outsourcing, third party application maintenance, marketing, training, audit, advice services and/or any other commercial services corresponding to the operation of the Component for the benefit of a third party;
(v) Host the Component for the benefit of third parties;
(vi) Disclose or permit any third party to access or use the Component;
(vii) Hack or alter, by any means, the Component;
(viii) Modify or create derivative works of the Component, or merge the Component with other software; integrate or combine any element of the Software to any other software, or create any composite or derivative works based on the Software;
(ix) Reverse-engineer, decompile, disassemble, recreate the Component, even partially, or attempt to or enable third parties to perform such acts, except as otherwise permitted by French law. In the event that User wishes to access information in order to achieve the interoperability of the Component with other software and before performing any decompilation task, User shall first ask GATLING CORP whether such information is promptly and/or easily accessible. If so, User shall limit the reproduction of the code or the translation of the code only to the parts of the program which are required for the performance of the aforementioned interoperability;
(x) Modify, obscure, or delete any copyright identification, trademarks or any proprietary rights notices included in or on the Component or Documentation;
(xi) Otherwise use or copy the Component or Documentation in a manner not expressly permitted by this Agreement.
(xii) Translate, adapt, arrange or modify the Component in any way whatsoever;
(xiii) Proceed with the correction of any Component errors – alone or with the assistance of a third party – to bring it into compliance with any given purpose; such right being reserved for GATLING CORP, in accordance with the French intellectual property Code. GATLING CORP shall correct the errors, if any, provided that such errors have been notified by User to GATLING CORP, are sufficiently documented by User and may be reproduced by GATLING CORP.
5. INTELLECTUAL PROPERTY
GATLING CORP owns all right, title and interest, including all intellectual property rights, in and to the Component. GATLING CORP reserves all rights in the Component not expressly granted to the User under this Agreement.
The Agreement does not include any license of use, nor trademarks and other distinctive signs of GATLING CORP and/or its licensors.
User shall promptly inform GATLING CORP of any unlawful use of the Component or contrary to the Agreement as soon as User has become aware of it. If, as a result of such information, GATLING CORP decides to take legal action against any third-party, User shall provide all necessary assistance that GATLING CORP may reasonably require.
6. USER’S OBLIGATIONS
User acknowledges to:
(i) Comply with the applicable Agreement when using the Component;
(ii) Use the Component in compliance with all applicable laws and third party rights.
7. WARRANTIES AND NON-INFRINGEMENT
7.1 Warranties
GATLING CORP warrants that it owns the necessary rights to conclude the Agreement, and notably it owns the intellectual property of the Component (to the exclusion of the rights on third-party software, if any) and the Documentation, for which the right of access and use is granted to User under the License.
The Component is provided “as is” by GATLING CORP. GATLING CORP expressly disclaims any warranty, whether express or implied, non-expressly defined in the Agreement, notably (i) that the functionalities contained in the Component will meet User’s needs and/or that the performance will be uninterrupted or free from bugs or errors and/or to the results obtained from the use and/or the performance of the Component and/or (ii) relating to the damages that may occur to User’s computer equipment, in particular its local infrastructure.
User acknowledges that the scientific and technical state-of-the-art when the Component was distributed did not enable all possible uses to be tested and verified, nor for the presence of possible defects to be detected. In this respect, User’s attention has been drawn to the risks associated with the use of the Component.
The User shall be responsible for verifying, by any or all means, the suitability of the Software with its requirements, its good working order, and for ensuring that it shall not cause damage to either persons or properties.
User warrants that it owns the necessary rights for the conclusion and the performance of the Agreement.
7.2 Non-infringement
GATLING CORP warrants User against all third-party claims alleging that the use of the Component by User, in accordance with the Documentation and the provisions of the Agreement, infringes an intellectual property right belonging to said third-party, provided that User informs GATLING CORP without delay of such claim and collaborates actively and in good faith with GATLING CORP in seeking a solution to the dispute.
GATLING CORP shall, at its own discretion and under its own control and management, seek to reach an amicable settlement with such third-party. In the event of the conclusion of an amicable settlement which amount will be agreed upon between GATLING CORP and such third-party, GATLING CORP shall pay the full amount to the third-party. If GATLING CORP fails to reach an amicable settlement, GATLING CORP shall, under its own control and management, ensure the defense of User with the active and good faith collaboration of the User. Under no circumstances, shall User conduct on its own the legal defense of the claim brought by the third-party against itself, and User undertakes to call GATLING CORP into warranty without delay.
In the event of a final court decision having the force of res judicata, GATLING will indemnify User for the amount of the monetary remedies and any interest accrued, provided that User can provide evidence of payment of such sums to the third-party.
The non-infringement warranty stated in this section shall not apply in the following cases:
- the Component is combined with other software, hardware or third-party equipment, where the alleged infringement results from such a combination;
- User continues the infringing activity despite the signing of a settlement or the notification of a final court decision having the force of res judicata;
- User uses a version of the Component which is not the current version, or
- infringement results from the failure of User to strictly comply with the Documentation and the provisions of the Agreement.
In the event of any such claim from a third-party against User and/or GATLING CORP, or threat of action or if GATLING CORP deems it likely to happen, GATLING CORP may, at its sole discretion, and subject to the conditions referred to above try to attempt to obtain the right for User to continue to use the disputed part of the Component, or replace the Component.
It is specified that the warranty stated in this section is restrictive. GATLING CORP expressly disclaims any express or implied warranty, which is not expressly defined in the Agreement.
User warrants that it owns the necessary intellectual property rights and/or rights of use required by their respective owners, relating to any elements made available to GATLING CORP in the performance of the Agreement, in particular its web applications or any Data, and that the conclusion and the performance of the Agreement shall not infringe any agreement concluded by User with a third party or any third-party’s rights. Failing that, User shall bear all the consequences and liabilities thereof and guarantee GATLING CORP against all claims, upon request.
8. DATA
User is the owner of the Data and in particular the test results obtained by using the Component.
9. FEEDBACK & REVIEWS
User may provide Feedback to GATLING CORP regarding the Component. Feedback is voluntary and is not Confidential Information, even if designated as such. GATLING CORP may fully exercise and exploit such Feedback for the purpose of (i) improving the operation, functionality and use of GATLING CORP’s existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated statistics about the quality of the Component, provided that no data in any such publication will be used to specifically identify User.
User hereby grants GATLING CORP a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback, in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits GATLING CORP’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
The User may also post reviews regarding the Component. When publishing reviews, User shall comply with following:
- The terms of this Agreement;
- Not make any false or misleading review;
- Ensure that the review is honest and in good-faith;
- Disclose any affiliation with a publisher or any conflict of interest (e.g. if you are a competitor).
GATLING CORP does not claim ownership of the content of reviews or comments you post on the Component. However, you agree that this content is licensed to us just like “Feedback” and that we can use and publish this content and incorporate it into other works in any format or medium now known or later developed, and permit others to do so.
10. FEES
10.1 Free of charge License
The Component under this Agreement is provided to the User free of charge.
10.2 Purchasing subscription licenses
The User may purchase subscription licenses for the Enterprise Software by submitting a request through GATLING CORP’s website or via its sales team: sales@gatling.io.
11. LIABILITIES
11.1 GATLING CORP’s liability
Notwithstanding the nature and/or the cause for the action:
- GATLING CORP shall only be liable for direct and foreseeable damages. Consequently, under no circumstances shall GATLING CORP be held liable for any indirect or unforeseeable, material or immaterial damages (and notably loss of profits, failure of security mechanisms, loss of customers, sales revenue or benefits, shortfall, any commercial disruption, interruption of business, loss of brand image, reputational harm, loss of opportunity, loss of, or inaccurate data, corruption to files or data and/or costs relating to a replacement solution), which may be suffered by User and/or any third party;
- in the event that the liability of GATLING CORP is recognized, GATLING CORP’S aggregate liability – for all types of causes and damages whatsoever – shall not exceed EUR 100.
Under no circumstances, shall GATLING CORP be liable in case of any use of the Component non-compliant with the Documentation and/or the Agreement and/or the instructions or guidelines of GATLING CORP.
Such limitation of liability will remain in force, even in the event of termination or expiry of the Agreement.
It is expressly agreed that, in any event, any claim for damages against GATLING CORP in connection with the Agreement will be time-barred one(1) year after the event that generated the claim.
11.2 User’s liability
User is solely responsible for:
- the choice of the Component and its use;
- the assessment and analysis of the results obtained with the Component; the use of the results being under User’s own and sole responsibility and risks;
- its premises, its web applications, computer equipment and information system. User shall comply with all GATLING CORP’s instructions in this respect;
- the information used for testing purposes.
12. FORCE MAJEURE
Neither Party shall be liable to the other Party for any failure or delay in performing its obligations under the Agreement when such failure or delay is the exclusive result of the occurrence of the case of force majeure.
The events provided for in article 1218 of the French Civil Code and recognized as such by French courts, constitute force majeure events.
The force majeure event will suspend the performance of the Agreement.
Each Party shall bear its own costs incurred due to a case of force majeure.
13. TERM AND TERMINATION
13.1 Term
The Agreement comes into force at the Effective Date and remains in effect until terminated as described in this Agreement.
13.2 Termination for convenience
Each Party may terminate the Agreement, without any default, by giving prior notice at least five (5) days to the other Party, by email (contact@gatling.io), of its election of termination.
13.3 Termination for breach
Each Party may automatically terminate as of right the Agreement, by email notice to the other Party, in the event that such Party is in material breach of its obligations, and such breach has not been remedied within thirty (30) days from receipt of notice to remedy, without prejudice to any damages that such Party might claim.
It is expressly agreed that any infringement of GATLING CORP’s intellectual property rights of User constitute a material breach by User of its contractual obligations under the Agreement.
13.4 Consequences upon termination of the Agreement
Upon termination of the Agreement for any reason whatsoever, User agrees to immediately stop the access and use to the Component.
Sections 5, 11, 14, 15 and 16 and all the provisions which should survive the expiration or termination of the Agreement by nature shall remain applicable, for the term necessary to give them full force.
14. CONFIDENTIALITY
Each Party shall consider as strictly confidential any data, information or knowledge, whatever their form or nature, and on whatever media, disclosed to it by the other Party in performing the Agreement (hereinafter referred to as the “Confidential Information”), and agrees that it shall not disclose any Confidential Information to any third party.
The Parties may disclose Confidential Information only to those persons allowed to receive such Confidential Information for the exclusive purpose of performing the Agreement and who agree to be bound by the provisions of the Agreement; each Party being responsible for such persons’ compliance with the aforementioned provisions.
Confidential Information does not include information, documents and/or tools which:
- was part of the public domain at the time of their disclosure or become part of the public domain without any breach to the provisions of this section;
- result from independent development by one of the Parties without any breach to this obligation of confidentiality by the concerned Party, or has been obtained through a third party, not bound by an obligation of confidentiality;
- has been explicitly considered as non-confidential by the disclosing Party for the purpose of the Agreement;
- is required to be disclosed by applicable law or judicial or administrative Court order.
The undertaking provided in this section shall come into force as from the period of negotiations between the Parties and shall survive during five (5)years after the termination of the Agreement for any reason whatsoever, it being agreed that in any event, such undertaking – when it relates to any Confidential Information relating to the intellectual property rights of GATLING CORP – shall remain valid during the term of the related intellectual property rights.
15. GENERAL PROVISIONS
15.1 Assignment
The User shall not assign – whether in whole or in part, free of charge or against payment, for any reason and under any form whatsoever – any of its rights and obligations under the Agreement to any third party, without the prior written consent of GATLING CORP. In addition, User shall expressly inform GATLING CORP in the event of change of control of its share-capital.
GATLING CORP may transfer any of its rights and obligations under the Agreement to any third party; it being understood that as from the effective date of the transaction, GATLING CORP shall not be held liable under the Agreement.
In case of assignment or transfer of the Agreement pursuant to the conditions defined in this section, the assignee or the successor will be automatically bound by the Agreement.
15.2 Independent contractors
The Parties are independent contractors, acting in their own name and on their own account. In no event shall the Agreement establish any mandate, franchise, employment relationship or any type of legal entity. Neither Party may bindingly commit the other Party with regard to any third party.
15.3 Entire agreement
Except as may be expressly agreed otherwise, the Agreement constitutes the entire agreement between the Parties. It cancels and replaces all prior or simultaneous agreements and understandings, whether oral or written, relating to the subject matter of this Agreement. The Agreement prevails over any User’s general terms and conditions.
15.4 Notice
Except as may be expressly agreed otherwise, all notices pertaining to the Agreement shall be in writing and either personally delivered or sent via e-mail or sent via postage prepaid certified mail which can be tracked, addressed to GATLING CORP’s representative at GATLING CORP’s address set forth in. All notices shall be effective upon the following business day of the first presentation of the notice to the recipient Party.
15.5 Severability
If any provision of the Agreement is held to be illegal, invalid or unenforceable, as a result of any statutory or regulatory provision or after the decision of a competent court, which has become final, all the other provisions of the Agreement shall continue in full force and effect, unless the purpose of the Agreement is consequently affected. In such an event, GATLING CORP may replace such provision by a solution which is in the spirit of the Agreement.
15.6 Waiver
The waiver or the failure by either Party to claim a breach by the other Party of any of its obligations under the Agreement shall not be construed as a waiver of such obligation for the future. Any waiver shall only be effective subject to a writing (which may not be a pre-printed form of contract or of terms and conditions) signed by a duly authorized representative of each Party.
15.7 Contact
For the purpose of the Agreement, GATLING CORP’s official address shall be the one set forth on top of this page or by e-mail to: contact@gatling.io
15.8 Language
The Agreement is in the English language only, which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in English or French language.
15.9 Amendment
GATLING CORP may update or modify this Agreement (including any referenced policies and other documents as the case may be) from time to time. Any such amendments will take effect thirty (30) days from the date of posting by GATLING CORP. If the User does not accept the amendment, it may terminate the Agreement. User’s continued use of the Component after the effective date of the revised Agreement constitutes User’s acceptance of such revised terms.
16. GOVERNING LAW AND DISPUTE RESOLUTION
The Agreement shall be governed by and construed in accordance with French Law.
Except where a breach of the defaulting Party makes the contractual relation impossible to maintain, the Parties will try to reach an out-of-court settlement for any dispute arising out of or relating to the interpretation, the enforcement or the termination of the Agreement. In the event that the Parties cannot reach an amicable solution within fifteen (15) Business Days as from the delivery of the corresponding notice by a Party to the other Party, the Parties irrevocably agree that the Courts of Paris shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter, notwithstanding the plurality of defendants, claim against guarantor, summary or conservatory proceeding.