License Agreements

This license is a binding legal agreements between xTuple, the author and owner of the software, and you, the end-user, which define the terms under which you may use the software.

The End User License Agreement (EULA) is a commercial agreement under which xTuple ERP is licensed. You pay xTuple for the right to use the software and agree to comply with the terms of the agreement. Professional support, services and cloud hosting are also available for users who purchase a commercial license.

The full text of the xTuple License, which governs the use of the commercial xTuple software by an end-user (typically a manufacturing or distribution company), is found below. xTuple's partner programs, covered under a separate agreement, offer generous incentives for value-added resellers, consultants, systems integrators, and other technology solution providers to resell and modify xTuple products.

 


This license is between you and xTuple and applies to the Software (as defined below). This license explains your rights to use and modify the Software. By signing — either electronically or manually — you accept this license and agree to comply with its terms and conditions.

 

1. Definitions. The following definitions apply to this license:

1.1. “Contribution” means any work derived from the Software by a Contributor, including, without limitation, any modification, addition, or deletion made to the Software by xTuple, another Contributor, or you.

1.2. “Contributor” means any party that develops a Contribution to the Software and includes, but is not limited to, xTuple and you.

1.3. “xTuple” means OpenMFG, LLC, d/b/a “xTuple,” a Virginia limited liability company and owner of the Software.

1.4. “Software” means the xTuple ERP Suite, ______________________ Edition, the xTupleCommerce website, and/or xTuple Packages (specify: __________________________) which are loaded into the xTuple ERP Suite, including all accompanying tools and documentation, and any Contributions added to the xTuple Software, tools, or documentation.

 

2. Rights Granted. xTuple licenses you to do the following with the Software:

2.1. Copy, install, and modify the source code version of the Software;

2.2. Use the Software for your own internal business purposes as an end-user of the Software.

This license is worldwide, non-exclusive, perpetual or annual, depending on the license fee paid, (unless terminated for breach), and non-transferable.

 

3. License and Maintenance Fees.

3.1. Number of Users. This license is for ______ concurrent users of the Software, and is licensed under either an Annual License or a Perpetual License (as defined below). If you elect to purchase additional users, convert this license from Annual to Perpetual, or from Perpetual to Annual, at a later date, all other terms of this license will continue to apply.

xTuple reserves the right to audit your usage of the Software, and if you exceed this specified number of concurrent users on more than three occasions, you agree that this license will be amended to add such additional users as xTuple deems required by the audit. Such additional users will be added via Attachment A to this license, and will be billed to you at xTuple’s then-current published rates. If you determine independent of any xTuple audit that you require additional user licenses, you may notify xTuple via electronic mail, and such additional users will be billed to you at xTuple’s then-current published rates, less a courtesy discount of 10%.

3.2. Annual License. In exchange for the license granted in Section 2, you agree to pay to xTuple an initial annual license fee in the amount specified in your xTuple invoice.

You must pay the annual license fee upon execution of this license and each subsequent anniversary thereof (provided that you are not in breach). Software Maintenance (as defined in section 3.5 below) is included in the Annual License. Renewal pricing of the Annual License shall be at xTuple’s then-current published rates (including any published discounts) unless you hold a multi-year license agreement; xTuple will invoice you for the amount due, thirty days before the due date. If you do not wish to renew your Annual License, you must notify xTuple in writing at least sixty days prior to the anniversary date of this Agreement.

3.3. Perpetual License. In exchange for the license granted in Section 2, you agree to pay to xTuple a Perpetual License Fee, plus the first year’s Software Maintenance Fee, in the amount specified in your xTuple invoice. You must pay both fees upon execution of this license.

3.4. Monthly Billing Option. For either the Annual or Perpetual License, you may optionally choose to pay to xTuple a monthly Fee in the amount specified in your xTuple invoice. Payment for monthly billing is only by pre-authorized ACH bank account draft; you hereby authorize xTuple to debit your account the monthly Fee, with the first three months’ payment due on the Effective Date, and monthly payments on the same day of the month as the Effective Date, starting three months following the Effective Date. You acknowledge that this does not constitute a month-to-month contract, and represents a commitment for a full twelve months following the Effective Date, subject to all the other terms contained in this license. In the event that your account debit is declined, a $50 fee will be assessed, and you must provide alternate billing information within 72 hours of being notified by xTuple, or be subject to the Termination clause in section 11 below.

3.5. Software Maintenance. Customers who are current on their Annual License payments or current in the first year of their Perpetual License payment as defined above shall be entitled to receive all updates and enhancements to the Software released by xTuple. Updates and enhancements will be provided electronically. Software Maintenance payments are due and payable each year on the anniversary date of the Perpetual License Fee, at xTuple’s then-current published rates, unless you hold a multi-year maintenance agreement. If you do not wish to renew your Software Maintenance, you must notify xTuple in writing at least sixty days prior to the anniversary date of this Agreement. If more than twelve months have passed since a customer’s most recent Software Maintenance Fee payment, the customer will be deemed to be “Out of Maintenance,” and xTuple reserves the right to treat any further updates to the Software as entirely new license sales, subject to additional penalties and fees as explained on the xTuple website. Installation of updates and enhancements is not covered under this License Agreement (see section 6, below).

 

4. Licensee Obligations. You are required to do the following when using or modifying the Software:

4.1. Include all original copyright and trademark notices and disclaimers;

4.2. Include the text of this license; and

4.3. Deliver to xTuple or its authorized reseller in digital or electronic format all Contributions that you make to the Software.

Assuming you are satisfied with the Software, you agree to provide a positive statement, including your company name, about your experience, either written or in video format, and/or case study for xTuple marketing purposes. Once provided, you grant us a worldwide, perpetual, royalty-free license to use and incorporate such statements or case studies for the purposes of marketing and promotion.

 

5. Prohibitions. You are not permitted to do any of the following with the Software:

5.1. Distribute a source code version of the Software containing your Contributions;

5.2. Distribute your Contributions to any party other than xTuple or its authorized reseller;

5.3. Distribute or redistribute a compiled binary version of the Software in its original or modified form;

5.4. Process or permit to be processed any other partyís data for a fee or other consideration;

5.5. Use the Software in the operation of a service bureau;

5.6. Provide consulting services related to developing, installing, implementing, or training for the use, modification, or distribution of the Software to any party outside of your business for a fee;

5.7. Develop or contribute to the development of a software application that competes with the Software.

Parties interested in reselling the Software, or providing services related to the Software, are encouraged to contact xTuple about a reseller or consultant arrangement, which would include a separate agreement and license.

 

6. No Additional Services. Under the terms of this license, xTuple is not responsible for installing, supporting, maintaining, or updating the Software (except in the case of Software Maintenance as defined above), for training you to install, use, support, maintain, update, or modify the Software, or for converting, entering, or verifying any data. xTuple and its authorized partners provide installation, support, hosting, training, and consulting services for a fee under separate written agreements.

 

7. Ownership. xTuple owns all right, title, interest, copyright, and patent rights in and to the original and all modified versions of the Software, including, without limitation, all Contributions made by you or any other party. To the extent that xTuple does not own your Contributions, you hereby transfer to xTuple all right, title, interest, copyright, and patent rights in and to your Contributions. xTuple reserves the right to sell or license for a fee the Software and any Contributions in connection with a license to use the Software and the Contributions in connection with support, maintenance, or consulting services.

 

8. Limitations on Liability. In no event will xTuple or any other Contributor be liable for any damages whatsoever, including, but not limited to, lost revenue or profits or other direct, indirect, special, incidental, or consequential damages, even if they have been advised of the possibility of such damages, except to the extent any applicable law prohibits this disclaimer.

 

9. NO WARRANTIES. The Software and this license document are provided AS IS with NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING THE WARRANTY OF DESIGN, TITLE, ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. In no event will xTuple refund the purchase of the Software.

 

10. Choice of Law. This license is governed by the laws of Virginia, including the Virginia Uniform Computer Information Transactions Act. Disputes must be settled in the state or federal courts located in Norfolk, Virginia.

 

11. Termination. If you breach any term or condition of this license or fail to perform any of your obligations under this license, then this license will automatically terminate, unless you have cured your breach or failure to xTuple's satisfaction within 30 days after xTuple or its authorized reseller has notified you of it. Upon termination, you must immediately stop using, modifying, and distributing the Software, deliver to xTuple or its authorized reseller all of your Contributions (whether or not completed), and delete all versions of the Software and Contributions from your systems. xTuple may seek injunctive relief and money damages against you if you breach this license or fail to perform your obligations.

 

This Data Processing Addendum (“Addendum”), effective May 25, 2018, forms part of any agreement, including terms and conditions or Terms of Use (“Agreement”) by and between the organization signing or accepting below (“Data Controller”) and OPENMFG,LLC d/b/a xTuple. (“xTuple”), and sets forth the terms and conditions relating to the parties obligations to protect EU Personal Data associated with services rendered by xTuple to Data Controller pursuant to the Agreement.

All terms defined or used in the Agreement shall have the same meaning in this Addendum unless otherwise specified.

Whereas Data Controller may provide xTuple, a company located in the United States, with access to personally identifiable information about European Economic Area individuals to act as a Processor in connection with services performed by xTuple for or on behalf of Data Controller pursuant to the Agreement;

Now therefore, good and valuable consideration, the sufficiency of which is hereby acknowledged, Data Controller and xTuple agree as follows:

 

SECTION I — DEFINITIONS

1. “Controller” means any person or organization that, alone or jointly with others, determines the purposes and means of the Processing of EU Personal Data.

2. “EU Personal Data” means personally identifiable information about individuals located in the European Union and may include, but not limited to, the following: (i) categories of data subjects: customers, vendors, or employees and (ii) types of personal data: names, telephone numbers or email addresses.

3. “GDPR” means the European Union General Data Protection Regulation.

4. “Process(es)” or “Processing” of EU Personal Data means any operation or set of operations that is performed on EU Personal Data, whether by automated means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure or dissemination, and erasure or destruction.

5. “Processor” means any natural or legal person, public authority, agency, or other body that Processes EU Personal Data on behalf of Controller.

 

SECTION II — PRIVACY, CONFIDENTIALITY, AND INFORMATION SECURITY

1. Authority to Process EU Personal Data

(a) Data Controller and xTuple agree that Data Controller is the Controller and xTuple is the Processor of EU Personal Data, except in those instances when Data Controller is a Processor, in which case xTuple is a subprocessor.

(b) These Addendum terms do not apply where xTuple is a Controller of EU Personal Data.

(c) xTuple will Process EU Personal Data only with Data Controller’s written instructions and solely for the following purposes, (a) on behalf of and for the benefit of Data Controller in connection with the Agreement; and (b) to carry out its obligations pursuant to this Addendum, the Agreement, and (c) as required by applicable law.

(d) Data Controller will have the exclusive authority to determine the purposes for and means of Processing EU Personal Data.

(e) This Addendum and the Agreement are Data Controller’s complete instructions to xTuple for the Processing of EU Personal Data. All additional instructions shall be made as a written amendment to this Addendum signed by both parties.

2. Disclosure of and Access to EU Personal Data

(a) xTuple will hold all EU Personal Data in confidence.

(b) xTuple will (a) provide at least the same level of privacy protection for EU Personal Data received from Data Controller, as is required by the GDPR; (b) promptly notify Data Controller if at any time xTuple determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR; and (c) take commercially reasonable steps to remedy any failures to properly Process such EU Personal Data if, at any time, Data Controller notifies xTuple that Data Controller has reasonably determined xTuple is not Processing the EU Personal Data in compliance with the GDPR.

(c) xTuple will only transfer EU Personal Data outside the country in which Data Controller or its personnel original delivered it to xTuple for Processing where adequate data privacy safeguards are in place, such as binding corporate rules, the Model Clauses, or the Privacy Shield principles, unless required by law, in which case, xTuple will, unless such prior disclosure is prohibited, notify Data Controller of such requirement before Processing.

(d) xTuple will not share, transfer, disclose, or otherwise provide access to any EU Personal Data to any third party or contract any of xTuple’s rights or obligations concerning EU Personal Data to a third party, unless Data Controller has authorized xTuple to do so in writing, except as required by law. Where xTuple, with the consent of Data Controller, provides to a third party access to EU Personal Data or contracts such rights or obligations to a third party, xTuple will, with each third party, (a) enter into a written agreement that imposes obligations on the third-party that are consistent with the GDPR, (b) transfer the EU Personal Data to the third party only for the limited and specified purposes as instructed by Data Controller, (c) require the third party to notify xTuple if the third party determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR; and (d) upon notice, take reasonable and appropriate steps to stop and remediate unauthorized Processing.

(e) Data Controller hereby provides its consent for xTuple to use the subprocessors on Exhibit A to provide the services. To the extent that xTuple makes any changes with regard to the use of its subprocessors, it shall inform Data Controller and provide Data Controller with the right to object to such change. To the extent Data Controller has a reasonable objection to such change in subprocessors, the parties shall cooperate to address the objection in a reasonable manner.

(f) xTuple may replace a subprocessor if the reason for the change is beyond xTuple’s reasonable control. In such instance, xTuple shall notify Data Controller of the replacement as soon as reasonably practicable, and Data Controller shall retain the right to object to the replacement subprocessor pursuant to section (e) above.

(g) xTuple will promptly inform Data Controller in writing of any requests with respect to EU Personal Data received from Data Controller’s customers, consumers, employees, or other associates. Data Controller will be responsible for responding to any such request, but xTuple will reasonably cooperate with Data Controller to address any such request or a request by an individual about whom xTuple holds EU Personal Data for access, correction, restriction, objection, erasure or data portability of his or her EU Personal Data.

(h) xTuple shall implement appropriate technical and organizational measures designed to protect the EU Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure, access or use (each a “Security Incident”) and in accordance with Vendor’s security standards.

(i) xTuple shall notify Data Controller within forty-eight (48) hours of a Security Incident, and shall provide such timely information as Data Controller may reasonably require to enable Data Controller to fulfil any data breach reporting obligations under the GDPR. xTuple will take steps to immediately identify and remediate the cause of such Security Incident.

(j) Subject to applicable law, xTuple will notify Data Controller immediately in writing of any subpoena or other judicial or administrative order by a government authority or proceeding seeking access to or disclosure of EU Personal Data. Data Controller may, if it so chooses, seek a protective order, and xTuple will reasonably cooperate with Data Controller in such action, provided Data Controller reimburses xTuple for all costs, fees, and legal expenses associated with the action. xTuple will have the right to approve or reject any settlements that affect xTuple.

(k) The parties agree that the European Commission Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries (2010/87/EU) (“Model Processor Contract”), attached here as Exhibit B, are incorporated by reference for purpose of the Mobile Processor Contract, where xTuple is the “data importer,” Data Controller is the “data exporter,” and the data processing activities in Appendix 1 to the Model Processor Contract shall be such activities as necessary for us to perform our Services for Data Controller, and the data security measures in Appendix 2 to the Model Processor Contract shall be those identified in the Agreement and this Addendum.

3. xTuple will comply with applicable data protection and privacy laws, including, but not limited to, the GDPR, to the extent such laws apply to xTuple in its role as a Processor.

4. Data Controller certifies that it:

(a) Has obtained the written consent, affirmative opt-in, other written authorization (“Consent”) from applicable individuals or organizations in the European Union (including as necessary trade unions or labor officials, or has another legitimate, legal basis for collecting, delivering or making accessible EU Personal Data to xTuple (as well at its subsidiaries, affiliates, and subprocessors), and such Consent or other legitimate basis allows xTuple (and its subsidiaries, affiliates, and subprocessors) to Process the EU Personal Data pursuant to the terms of the Agreement and this Addendum, and

(b) Has ensured that the collection, delivery and disclosure to xTuple of EU Personal Data is in compliance with the GDPR as Controller and all laws applicable to Data Controller and otherwise complies with applicable privacy and data protection laws, including the delivery of comprehensive information notice, as needed.

5. xTuple will assist Data Controller in ensuring that its secure Processing obligations, as Controller, under the GDPR are met, which may include assisting Data Controller in a consultation with a supervisory authority where a data protection impact assessment indicates that the intended Processing would result in a high risk. Upon request, xTuple shall make available to Data Controller the information necessary to demonstrate compliance with the GDPR and will allow for and contribute to audits, including inspections, to confirm xTuple’s compliance with this Addendum by Controller or another auditor mandated by Controller. All expenses resulting from this Section 5 will be incurred by Data Controller, unless xTuple is found materially noncompliant.

6. Upon termination of the Agreement, xTuple shall either return all EU Personal Data Processed on behalf of Data Controller or delete or destroy the EU Personal Data, including any existing copies, at Data Controller’s expense, if any, unless xTuple has a legal obligation to maintain such EU Personal Data.

IN WITNESS WHEREOF, the parties acknowledge their agreement to the foregoing by due execution of this Addendum by their respective authorized representatives. The Addendum cannot be modified or amended by either party except with a separate written document signed by both parties.

Exhibit A
Subprocessors — See Technology Partners

Exhibit B
Standard Contractual Clauses — See Attached (PDF)

 

If you have questions related to the EULA or DPA, or how we treat information pursuant to this Policy, or you wish to correct, delete or update your information, please contact us using this form or in any of the ways listed below.

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