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This End-User License Agreement (this "Agreement") is a legal contract between you, as either an individual or a single business entity, and Perforce Software, Inc. and its affiliates ("Perforce"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR INSTALLING PERFORCE’S PROPRIETARY SOFTWARE (THE "SOFTWARE") OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE. THE SOFTWARE IS FURTHER DEFINED IN AN ORDER DOCUMENT (AN “ORDER”), ENTERED INTO BETWEEN YOU AND PERFORCE OR YOU AND A PERFORCE RESELLER, WHICH SETS FORTH COMMERCIAL TERMS APPLICABLE TO YOUR PURCHASE OF THE SOFTWARE. THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT AND IS NOT SOLD TO YOU. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE, OR BY ENTERING INTO AN ORDER WHICH REFERENCES AND PROVIDES SOURCE INFORMATION NECESSARY FOR ACCESSING AND REVIEWING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD TERMINATE THE DOWNLOAD OR INSTALLATION PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT, INCLUDING ANY ORDERS, REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND PERFORCE CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH PERFORCE RELATING TO THE SOFTWARE UNLESS YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT SIGNED BY PERFORCE THAT EXPRESSLY AMENDS THIS AGREEMENT.
1.1. Grant of License. Perforce hereby grants to you, and you accept, a limited, nonexclusive, nontransferable license to use the Software in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement, and subject to compliance with the terms of this Agreement, and payment of all applicable license fees. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made available to you by Perforce. Notwithstanding the foregoing, Perforce shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. The term of your license is as set forth in the Order. If the Order does not state a term, then the term of the license shall be for a period of one (1) year from the earlier of your download or installation of the Software. The term of your license is renewable on terms set forth in the Order or otherwise as agreed by Perforce.
1.2. Scope of Use. You may use the Software activated by a license key for the number of computers (virtual or physical) owned, leased, or otherwise controlled by you, at rates specified for metered usage or for the number of users, as specified in an Order. An Order may also specify other applicable license scope definitions. For purposes of this Agreement, “use” of the Software means loading the Software into the temporary or permanent memory of a computer and executing the Software. If you distribute the Software to multiple computers or users, you must ensure that your usage does not exceed the usage for which you have paid license fees, or you will be in breach of this Agreement unless the order is for meter use. If the Order does not state a scope of license, then the scope of license for the Software shall be for a single user on a single computer or shall be metered at the applicable rate.
1.3. Restrictions, Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. You may make one copy of the Software, the Documentation, and any license keys that you have obtained, solely for backup or archival purposes. Any such copies of the Software, Documentation, or license keys shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software, Documentation, or license keys, or any portions thereof, may be made or distributed by you or any person under your authority or control. You may not allow third party use of the Software or use of the Software as a service bureau.
1.4. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, to any party without prior written consent of Perforce.
1.5. Product Specific Special Terms. The provisions of this Section are applicable to the specific product mentioned and are exceptions to other provisions of this Agreement, and serve to modify such provisions only to the extent such provisions relate to these products. Zend Server –There are multiple editions of Zend Server, each with different functionality and Service Level Agreements (SLA). Notwithstanding anything to the contrary set forth in this Agreement, you are permitted to duplicate and distribute the Zend Server product, on a standalone basis or combined with other products, provided (i) you do not make any modifications to Zend Server and distribute the entire Zend Server product, (ii) you do not modify or remove any proprietary rights notices or markings, or remove or modify this Agreement as included in any such distribution, (iii) you clearly indicate that Zend Server is included in your distribution, (iv) you do not use Perforce’s name, logos or trademarks or the name, logos and trademarks of any included third party software in any way that might state or imply Perforce’s or a third party’s endorsement of your product, and (v) you do not transfer with any such copy any license keys for Zend Server. You are not allowed to operate Zend Server without a valid license. Zend Server Developer Edition - Zend Server Developer Edition is limited to use in Development and may not be used in Production and in Staging, which is a complete but independent copy of the production environments. Plugins provided with Zend Server or downloaded from Zend Galley fall under the terms outlined in the BSD license agreement. Zend Studio - Zend Studio is not available for you to distribute. If the license key for Zend Studio expires and is not renewed for a subscription or limited term license, Zend Studio will continue to operate with only reduced functionality. This reduced functionality version is licensed on a perpetual basis, without charge, subject to compliance with the terms of this Agreement. Zend Guard - Zend Guard is not available for you to distribute. However, you may distribute Zend Optimizer and Zend Guard Loader (the runtime c components for encoded files) to your end customers, provided that your end user customers enter into an end user agreement that contains at a minimum the following provisions covering the Perforce embedded components: (i) prohibits reverse compilation and/or reverse assembly, (ii) disclaims all warranties, and (iii) disclaims liability for any indirect, incidental or consequential damages.
2.1. Use Reporting, License Violations and Remedies. Perforce reserves the right to gather data on license key usage including license key numbers, server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. Additionally, you agree that Perforce may, upon reasonable notice, perform an audit of your facilities to verify compliance with the terms of this Agreement. Any unauthorized use shall be considered by Perforce to be a violation of this Agreement. Perforce reserves the right to remedy violations immediately upon discovery, by charging the then-current list price of unauthorized license keys. This is not a sole remedy for a violation of this Agreement and Perforce may exercise any other remedies available at equity or law.
2.2. License Automatic Update and Expiration. Your license may include an expiration date that can result in the termination of the license. There is no expiration date for perpetual license keys, however upgrades and support are only available if you purchase support from Perforce. Perforce may terminate your license if it determines that a license is used in violation of the terms of this Agreement. If your license key is stolen, or if you suspect any improper or illegal usage of your license key outside of your control you should promptly notify Perforce of such occurrence. A replacement license will be issued to you and the suspect license will be allowed to expire. For limited-term licenses, your periodic payment must be processed prior to the expiration date in order for the license updates to be performed. It is your responsibility to contact Perforce regarding any potential expiration that you deem inappropriate. Perforce shall not be liable for any damages or costs incurred in connection with the expired licenses.
2.3. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to Perforce, and the Software and Documentation are protected under United States copyright law and international treaties. You further acknowledge and agree that, as between you and Perforce, Perforce owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that Perforce uses in connection with the Software or with services rendered by Perforce are marks owned by Perforce. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
2.4. Confidentiality. You shall permit only authorized users, who possess rightfully obtained license keys, to use the Software. Except as expressly authorized by this Agreement, you shall not make available the Software, Documentation, or any license key to any third party. You will use your best efforts to cooperate with and assist Perforce in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.
The Software will be available to you for use upon your receipt of a license key. You may obtain one or more license keys by ordering the license keys from Perforce or a Perforce reseller, as the case may be. The license fees paid by you for the license keys are paid in consideration of the license granted under this Agreement. You shall, in addition to license fees, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of your purchase and use of the Software, excluding income taxes on the net profits of Perforce.
Zend Server Products are available only on a subscription basis. There are multiple versions of Zend Server, each with different functionality and SLA. For Zend Studio and Zend Guard, you may elect to purchase Software upgrade and support services by so ordering from Perforce or a Perforce reseller and paying the applicable fees.
This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, or using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are licensing the Software on a limited term basis, and fail to pay the applicable license fees or renewal license fees, Perforce shall have the right to interrupt your use of the Software. Perforce may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and Perforce’s decision to terminate the Agreement. Upon termination of this Agreement, you agree to either return to Perforce the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to Perforce.
Perforce shall, at its expense, defend and indemnify you for damages and reasonable costs finally incurred in any suit or claim brought against you alleging that the Software infringes any U.S. patent, copyright, trade secret or similar right, provided that Perforce is promptly notified, rendered reasonable assistance by you as required, and permitted to direct the defense or settlement negotiations. Perforce shall have no obligation to defend or indemnify any infringement claim that arises from or relates to: (i) a modification of the Software by you or any third party, (ii) a combination of the Software with other software products, components, processes or materials, (iii) your failure to incorporate or implement modifications directed by Perforce, (iv) third party or open source software components, (v) use of the Software in a manner inconsistent with the Documentation, or (vi) any Software provided for evaluation or trial use or marked as beta or early access. Should the use of Software by you be enjoined, or in the event Perforce wishes to minimize its potential liability hereunder, Perforce may, at its option, either: (i) substitute fully equivalent noninfringing software; (ii) modify the infringing Software so that it no longer infringes but remains functionally equivalent; (iii) obtain for you, at Perforce’s expense, the right to continue use of the Software; or (iv) take back the infringing Software and refund to you pre-paid license fees applicable to the remainder of the license term, or if a perpetual license was purchased, the purchase price paid, less depreciation amortized on a three-year straight line basis. This indemnification sets forth Perforce’s sole liability and your sole remedy for claims of infringement arising from your use of the Software. You will, at your own expense, indemnify and hold Perforce, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees, arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement. Your indemnification does not include claims of infringement that are covered by Perforce’s indemnification above.
Perforce warrants for a period of thirty (30) days from your receipt of the Software that the Software will materially conform to the Documentation. This warranty covers only problems that are reproducible and verifiable and does not cover software, or other items or any services provided by any persons other than Perforce. Maintenance and support, if any, are governed by a separate agreement. Software, which has been abused, misused, damaged, modified, or subjected to unauthorized use or installation, used in a manner inconsistent with the Documentation or used with components not authorized by Perforce, shall void this warranty. Perforce’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in Perforce’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or workaround which corrects the reported non-conformity, or if Perforce, in its sole discretion, determines such remedies to be impracticable within a reasonable period of time, to provide a refund of the fees paid for the Software. This limited warranty does not apply for any Software provided for evaluation or trial use or marked as beta or early access. EXCEPT AS SET FORTH ABOVE IN THIS SECTION, THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS,” AND PERFORCE DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, PERFORCE EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE. WARNING: The Software is not designed or intended for use in on-line control of equipment in hazardous environments such as the operation of nuclear facilities, aircraft, air traffic, aircraft navigation or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility, or in the operation or maintenance of any direct life support system. Perforce disclaims any express or implied warranty of fitness for such uses and shall not be liable for any costs, liabilities or damages resulting from the use of the Software in such an environment. You agree that you will not use or license the Software for such purposes.
IN NO EVENT WILL PERFORCE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF PERFORCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PERFORCE BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID TO PERFORCE FOR THE SOFTWARE WITHIN THE PERIOD OF TWELVE (12) MONTHS PRIOR TO ANY CLAIM ARISING.
9.1. Governing Law and Choice of Forum. The Agreement and the parties’ rights and obligations hereunder shall be solely and exclusively construed, interpreted and enforced under and in accordance with the laws of the State of Colorado, United States of America, without any reference to conflicts of law principles. The parties agree that the U.N. Convention on the International Sale of Goods shall not apply to the Agreement. Any and all disputes between the parties shall be brought and resolved solely and exclusively in the state or federal courts located in the State of Colorado, United States of America. Both parties hereby irrevocably consent to the jurisdiction of such courts and service of process in connection therewith. Any judgment rendered by such courts may be entered and enforced by any court having jurisdiction over the party against which an award is entered or its assets. Both parties hereby irrevocably waive any objections to the jurisdiction of such courts based on any ground, including without limitation improper venue or forum non conveniens.
9.2. Severability. If any term or provision of the Agreement is found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, the Agreement will remain in full force and effect, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
9.3. Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
9.4. Headings. The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
9.5. No Waiver; Amendments. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Amendments to the Agreement shall only be effective if in writing and signed by all parties.
9.6. Assignment. You may not assign your rights under this Agreement and any attempted assignment shall be void and of no effect. Perforce may assign its rights and obligations under this Agreement.
9.7. United States Government Restricted Rights. The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer SoftwareRestricted Rights at 48 C.F.R. S:52.227-19, as applicable.
9.8. Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR DOCUMENTATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. YOU SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF PERFORCE AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. (Rev. March 2017)