SOFT GRAVITY End User License Agreement (the “Agreement”) for the Unroole software product(s set out in the Purchase Order (as defined below) (“Unroole” or the “Software”).
THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU (“you” or “your”) AND SOFT GRAVITY INC. (“Soft Gravity). BY CHECKING, THE “I HAVE READ AND AGREE TO THE END USER LICENSE AGREEMENT” BOX AND/ORBY PURCHASING, DOWNLOADING, INSTALLING, ACCESSING, OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY SOFT GRAVITY, AND/OR BY OTHERWISE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.
This Agreement sets forth the terms and conditions on which you may use the Software.
“Unroole User” means an individual user within your company who has been assigned a unique username and password that authorizes such individual to access and use the administrative / content management capabilities of the Software.
“Content Items” means a discrete item of content that is placed on the website created using the Software, including without limitation news reports, video images, event notices, documents, blog posts, and still images.
“Site Visitor”means an individual who can access only the public portion of a website at the top level domain created with the Software. Site Visitors do not have username and password access to the administrative / content management capabilities of the Software.
1. Software License
1.1 General. Subject to the terms and conditions set forth in this Agreement:
1.1.1 where you have agreed in a master agreement, purchase order, on-line purchase process, or other written document (the “Purchase Order”) to license the Software for use on your hardware and systems, Soft Gravity hereby grants to you and you hereby accept a limited, non-transferable, royalty-free, non-exclusive license (the “Local License”) to install on your hardware and systems, and use, the Software, and any updates, upgrades, modifications and error corrections thereto provided to you by Soft Gravity; and
1.1.2 where you have agreed in the Purchase Order to license access to the Software hosted by Soft Gravity on its hardware and system, Soft Gravity hereby grants to you and you hereby accept a limited, non-transferable, royalty-free, non-exclusive license (the “SAAS License”) to access and use the Software, and any updates, upgrades, modifications and error corrections thereto provided to you by Soft Gravity;
(each of the SAAS License and the Local License, as applicable, the “License”).
1.2 Restrictions on Use.
1.2.1 Unroole User Limits. The number of Unroole Users that can be logged into the Software at any given time is as set out in the Purchase Order. Different Unroole Users within your company may log in to the Software at different times, as long as no more than such number of Unroole Users is logged into the Software at any given time.
1.2.2 Page Limits. The limit on the number of pages published on the website that you create using the Software is as set out in the Purchase Order.
1.2.3 Content Limits. The limit on the number of Content Items that you place on the website you create using the Software is as set out in the Purchase Order.
1.2.4 Site Visitors. The limit on how many Site Visitors may visit a website developed and administered using the Software is as set out in the Purchase Order.
1.2.5 Local Licenses Are Per-Domain. If the Software is licensed to you pursuant to the Local License, the Software is licensed on a per-domain basis, and (a) you may only install and use the Software on one (1) top level domain; (b) there is no limitation to the number of subdomains within the top level domain on which you may install, if applicable, and use the Software (i.e. by registering a license key for the Software for the top level domain mysite.com, you will be able to use it for all subdomains - www.mysite.com, http://support.mysite.com, http://mysite.com, etc.); and (c) you may purchase the right to use the Software on more than one top level domain; please contact Soft Gravity at [email protected] if you wish to do so.
1.2.6 Administrative Use Limited to Unroole Users. At no time may the Software be (i) used or accessed for administrative / content management purposes by anyone other than Unroole Users, or (ii) be used or accessed simultaneously by more than the number of Unroole Users permitted to use the Software at any given time under the License of the Software that you purchased.
1.2.7 No Use of the Software by Third Parties. You may not sublicense, distribute, publish, transfer, rent, lease or otherwise make available the Software to any third parties. You may not permit third parties to access and use the Software on a time-sharing or service bureau basis.
1.2.8 No Reverse Engineering. To the fullest extent permitted by applicable law, you may not disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Software.
1.2.9 No Modification. You may not copy, modify, alter, edit or create derivative works of the Software.
1.2.10 No Use to Create Competitive Product. You may not use the Software as a whole, or any of its components, as a basis for creation of another software product that has the same or similar functionality as the Software.
1.2.11 Abuses. If the Software is licensed to you pursuant to the SAAS License, you may not use the Software or any Soft Gravity systems or networks in any manner that (i) is prohibited by any law or regulation or Soft Gravity policy; (ii) will disrupt third parties’ use or enjoyment of the Software or any Soft Gravity systems or networks, including but not limited to if its use results in automated, constant and repeated requests for data other than as permitted under this Agreement (e.g. denial of service attack), and has a negative effect on Soft Gravity or the Software or any Soft Gravity systems or networks (including but not limited to abnormal usage that overloads servers on the Soft Gravity network or causes portions of the Soft Gravity network to be blocked; (iii) uses the Software or any Soft Gravity systems or networks systems or networks to create, transmit, distribute or store material that violates trade-mark, copyright, trade secret or other intellectual property laws; violates the privacy, publicity or other personal rights of others; violates export control or data protection laws; impairs the privacy of communications; may be threatening, abusive or hateful; or constitutes or encourages conduct that would constitute a fraud or criminal offence or gives rise to civil liability; or (iv) that attempts to penetrate Soft Gravity security (which action will also be reported to appropriate law enforcement agencies) (each of (i) through (iv), an “Abuse”).
1.3. Reservation of Rights. Any and all rights in the Software not expressly granted to you as part of the License hereunder are reserved in all respects by Soft Gravity.
2. Delivery and Access
If the Software is licensed to you pursuant the Local License, Soft Gravity shall deliver to you a copy of the Software licensed hereunder in electronic format only, as well as a license key that permits you to access and use the Software. If the Software is licensed to you pursuant to the SAAS License, Soft Gravity shall provide you with applicable access credentials that permit you to access and use the Software.
3. Trade-marks and Branding
3.1 Web Page Footers. Web pages on a website created using the Software may (but are not required to) contain Soft Gravity’s Unroole™ logo on the footer of each web page.
3.2 No Use of Soft Gravity Brand. You may not use the Soft Gravity product names, logos or trade-marks to market your website, products or services without the express prior consent of Soft Gravity.
3.3 No Alteration. You may not remove, alter or obscure any Soft Gravity trade-marks, logos, tag lines or other Soft Gravity branding included in the Software.
3.4 Quality Control. Soft Gravity reserves the right to review your website to ensure your compliance with terms of this Section 3; your breach of this Section 3 shall be grounds for termination by Soft Gravity of this Agreement and the License granted to you hereunder pursuant to Section 5.2.
4. Support and Updates
4.1 Discussion Forums. Unless support has been purchased from Soft Gravity pursuant to the Purchase Order, you are not entitled to receive support from Soft Gravity although you may submit support-related questions on the discussion forums on Soft Gravity’s website or through such other mechanisms as may be provided by Soft Gravity, to which Soft Gravity personnel or other users of Soft Gravity products may respond; however, Soft Gravity has no obligation to respond to such questions, and any feedback you may receive via such forums or otherwise is provided AS IS, without warranty of any kind, and your use of such feedback is at your own risk.
4.2 Agreement Applies to Updated Software. If you have purchased support from Soft Gravity pursuant to the Purchase Order, you may receive updates to the Software. You acknowledge and agree that such updates replace and/or supplement (and may disable) the version of the Software that formed the basis for your eligibility for the update. You may use the resulting updated Software only in accordance with the terms of this License.
4.3 Support Incidents. If you have purchased support from Soft Gravity pursuant to the Purchase Order, you may submit support incidents to Soft Gravity. A single support incident may involve several e-mails and offline work in order to be resolved. You agree to provide Soft Gravity with detailed information about the issue encountered and cooperate with Soft Gravity’s requests for additional information as they attempt to resolve the issue. Soft Gravity support engineers will make reasonable efforts to resolve your support issues; however, Soft Gravity does not guarantee that all support issues will be resolved. Bug reports and product feature suggestions are not considered support incidents, and Soft Gravity is not obligated to acknowledge or address such bug reports and/or product feature suggestions.
5. Term and Termination
5.1 Term. This Agreement and the License granted hereunder shall last for such term as set out in the Purchase Order.
5.2 Termination. Soft Gravity may terminate this Agreement and the License granted hereunder if you fail to remedy any non-compliance with any of the terms and conditions of this Agreement within thirty (30) days after receiving written notice from Soft Gravity of any such alleged non-compliance. Upon termination of this Agreement for any reason the License granted to you hereunder shall terminate automatically and you must immediately cease use of the Software, cease accessing the Software and, if applicable, destroy all copies of the Softwarein your possession. Unless otherwise prohibited by law and without prejudice to Soft Gravity’s other rights or remedies, and without limiting the generality of the foregoing, Soft Gravity shall have the right to terminate this Agreement and the License granted hereunder immediately in the event that: (i) you breach any of the License restrictions set forth herein, or engage in, or participate with any third party, in any unauthorized use, manufacture, duplication, reverse-engineering, distribution of any software of Soft Gravity (including but not limited to the Software), or engage in any activities involving the Software that are prohibited by law; (ii) infringe upon any intellectual property right of Soft Gravity; or (iii) in the event of any Abuse. Notwithstanding the forgoing, this Agreement terminates immediately upon the termination or expiration of the Purchase Order, unless otherwise provided for in the Purchase Order.
5.3 SAAS License Modification. If the Software is licensed to you pursuant to the SAAS License, Soft Gravity in its sole discretion, and with prior notice to you, add to, remove, modify, or otherwise change any part of this Agreement, in whole or in part, at any time.
6. Product Discontinuance
Soft Gravity reserves the right to discontinue at any time any component of the Software, whether or not it is offered as a standalone product or solely as a component of the Software. However, to the extent Soft Gravity is obligated to provide support for the Software in accordance with the terms set forth in this Agreement and the Software has been licensed pursuant to the Local License, Soft Gravity will provide support for all such discontinued components for a period of one (1) year after the date of discontinuance.
7. Warranty Disclaimer
Soft Gravity does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. Unless otherwise expressly set out in the Purchase Order in writing, Soft Gravity DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, COVENANTS, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Soft Gravity be liable for any indirect, special, incidental, or consequential damages arising out of the use of or inability to use the Software including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In the event you have licensed the Software pursuant to the SAAS License, you (a) recognize that the Internet consists of multiple participating networks that are separately owned and therefore are not subject to the control of Soft Gravity; (b) acknowledge that computer systems are inherently unstable and may malfunction or cease to function at any time without warning and that malfunction or cessation of Internet services by Internet service providers or of any of the networks that form the Internet may make the services temporarily or permanently unavailable; (c) agree that Soft Gravity shall not be liable for damages incurred or sums paid when the Software is temporarily or permanently unavailable due to malfunction or cessation of Internet services by networks or Internet service providers not subject to the direct control of Soft Gravity, or due to any accident or abuse by you or any end user; and (d) agree that Soft Gravity shall not be liable to you for any breach of security on the network, regardless of whether any remedy provided in this agreement fails its essential purpose. In any case, Soft Gravity’s entire liability regarding your use of the Software under this Agreement shall not exceed in the aggregate the sum you paid for the Software notwithstanding any failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not be applicable. Soft Gravity and its licensors are not responsible for any liability arising out of content provided by you or a third party that is accessed through the Software, on a website built using the Software, and any material linked through such content or such website. The extent of Soft Gravity’s liability for the limited warranty section shall be as set forth therein.
You agree to indemnify, hold harmless, and defend Soft Gravity, its licensors and its resellers from and against any and all claims, lawsuits and proceedings (collectively, “Claims”), and all expenses, costs (including but not limited to lawyer’s fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from your use or misuse of the Software or from the websites that you develop and administer through the use of the Software (but excluding such Claims that are solely attributable to infringement of third party intellectual property rights solely as a result of your authorized use of the Software).
10. Intellectual Property
The Software is licensed, not sold. All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text embedded in the Software), the intellectual property embodied in the Software, and any trade-marks or service marks of Soft Gravity that are used in connection with the Software, are and shall at all time remain exclusively owned by Soft Gravity and its licensors. Any and all rights in the Software not expressly granted to you hereunder are reserved in all respects by Soft Gravity. Portions of the Software may contain or may be accompanied by software code for third party components, including the third party open source software components that are subject to the terms and conditions of the applicable open source licenses and notices set out here: [insert URL]. By agreeing to be bound by this Agreement, you agree to be bound by any applicable terms and conditions that relate to any such third party components. Notwithstanding anything else in this Agreement, all third party components are supplied AS IS without warranty of any kind.
11. Governing Law
This Agreement and the licenses granted hereunder will be governed by, and construed and interpreted under, the laws of the Province of Ontario and the federal laws of Canada applicable therein. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods (and any local implementing legislation) shall not apply to this Agreement. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
12. No Assignment
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Soft Gravity’s prior written consent.
13. Entire Agreement
Subject to such express modifications that are expressly set out in the Purchase Order, this Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof, and may only be amended by a written agreement between the parties.
You will keep the Software and all other confidential information provided to you by Soft Gravity during the term of this Agreement (collectively, “Confidential Information”) strictly confidential and only use such Confidential Information solely for the purposes outlined in and permitted under this Agreement. You further agree to protect all Confidential Information during the term of this Agreement by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use and unauthorized disclosure of the Confidential Information as you use to protect your own confidential and/or proprietary information or data.
15.1 No Waiver. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
15.2 Severability.If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
15.3 Survival. All provisions of this Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any terms that expressly state that they shall survive termination or expiration, shall survive termination or expiration of this Agreement.
15.4 Independent Contractor Status.Each party shall be and act hereunder as an independent contractor, and not as a partner, joint venturer or agent of the other.
15.5 Headings. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
15.6 Language. The parties have expressly required that this Agreement and all documents and notices relating hereto be drafted in English. Les parties aux présentes ont expressément exigé que la présente convention et tous les documents et avis qui y sont afferents soient rédigés en anglais.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE, BY LOADING, RUNNING OR ACCESSING THE SOFTWARE, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE (AS APPLICABLE), YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN SOFT GRAVITY AND YOU, THIS AGREEMENT AND THE PURCHASE ORDER ARE A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.