This EULA constitutes a valid and binding agreement between Usability Dynamics, Inc., (Licensor) and you and the organization you represent (collectively, End User) for the use of Theme or Premium Feature (Licensed Work) provided to End User by Licensor. End User understands and agrees that the Licensed Work includes Open Source Software components. End User understands and agrees that the Licensed Work also includes proprietary information such as Source Code, Object Code, and other Confidential Proprietary Information, all of which are considered part of the Licensed Work, and all of which are protected by Federal and International Copyright Laws. End User agrees to be bound by the terms of this Agreement and any new versions of it. Licensor reserves any right not expressly granted to the End User. End User hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
In this Agreement the following capitalized definitions are being used, singular as well as plural.
"Affiliate" means any staff member of Licensor or other 3rd party corporation, company or other entity that directly or indirectly assists Licensor with the Licensed Work.
"Confidential Proprietary Information" means any and all information provided to End User by Licensor, including, but not limited to, documentation, trademarks, names, signs, logos, and any other materials, in whatever form, owned and/or used by Licensor for the use and/or promotion of the Licensed Work as well as Licensor's other products and activities.
"Derivative Work" means creation of a new work by modification of Licensed Work.
"Effective Date" means the date on which this Agreement is entered into.
"GPLv2 License" means the General Public License, Version 2, which is used for Open Source Software.
"IP Rights" means any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to the proprietary portion of the Licensed Work, documentation, or Confidential Proprietary Information.
"Open Source Software" means is computer software that is available in source code form for which the source code and certain other rights normally reserved by the creator of the software are provided under a software license that permits users to study, change, and improve the software.
"Object Code" means the non-human-readable or binary code as used to executed a program as the result of compiling Source Code.
"Source code" means the version the human-readable software code used to create the Licensed Work.
For the Open Source Software portion of the Licensed Work, End User agrees to be subject to the terms of this Agreement as limited by the GPLv2 License.
For remaining portion of the Licensed Work, End User agrees to be fully bound the terms of this Agreement. Licensor hereby grants End User a limited, personal, non-exclusive, non-sub licensable, nontransferable license to take the following actions:
A. Use the Licensed Work on computer systems owned, leased, or otherwise controlled by the End User in its own facilities or facilities under its control.
B. Positively promote the Licensed Work to other potential users by blogging or website postings; however, maligning or malicious blogs and/or website postings are considered a violation of this Agreement.
For the Open Source Software portion of the Licensed Work, End User is only limited according to the restrictions imposed by the GPLv2 License.
For remaining portion of the Licensed Work, End User is restricted from any actions not explicitly granted by this Agreement, including, but not limited to, the following actions:
A.User shall not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Licensed Work or any part of it.
B. End User shall not undertake, cause, permit or authorize the translation, reverse engineering, decompiling, disassembling or hacking of the Licensed Work or any part of it.
Changes to Licensed Work
For the Open Source Software portion of the Licensed Work, End User may alter such portion as End User sees fit.
For remaining portion of the Licensed Work, Licensor, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Licensed Work. End User understands and agrees that Licensor has no obligation to make available to End User any subsequent versions of the Licensed Work, unless otherwise agreed. End User also agrees that End User may have to enter into a renewed version of this Agreement, in the event End User wants to install or use a new version of the Licensed Work. Furthermore, End User understands and agrees that Licensor is in no way liable for damages of any kind nor is Licensor obligated to assist End User in any way, should such changes cause loss of functionality, errors, or other such issues in End User's current version of the Licensed Work.
End User understands and agrees that the proprietary portions of the Licensed Work contains valuable Confidential Proprietary Information and that unauthorized use of such is harmful to Licensor. As such, End User shall take all reasonable steps to at all times protect and maintain any confidential information regarding Licensor, its Affiliates, the Licensed Work, Confidential Proprietary Information, and IP Rights, strictly confidential. End-User shall employ reasonable security precautions to prevent unauthorized persons from having access to any such confidential information.
End User understands and agrees that any and all IP Rights to Licensed Work, as well as in any Derivative Works created by Licensor, are the exclusive property of Licensor. End User understands and agrees that nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, End User. End User will not take any action to jeopardize, limit or interfere with such IP Rights. End User understands and agrees that any unauthorized use of IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including, but not limited to, copyright laws and trademark laws. End User agrees that End User will not remove, obscure, make illegible or alter any notices or indications of IP Rights and/or Licensor's rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to such materials.
Disclaimer of Warranties
THE LICENSED WORK IS PROVIDED "AS IS", WITH NO WARRANTIES WHATSOEVER; LICENSOR DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE LICENSED WORK, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. LICENSOR FURTHER DOES NOT REPRESENT OR WARRANT THAT THE LICENSED WORK WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE. END USER ASSUMES ALL RISKS ARISING OUT OF END USER'S USE OF THE LICENSED WORK, TO THE MAXIMUM EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSIONS AND LIMITATIONS AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO END USER.
This Agreement will be effective as of the Effective Date and will remain effective until terminated by either Licensor or End User as described below. Either party may terminate this Agreement by providing 10 days notice to the other party. Upon termination of this Agreement, End User shall immediately surrender and cease use of the Licensed Work, and that it will return any relevant Confidential Proprietary Information to Licensor in End User's possession. End User understands and agrees that Licensor is not liable for any damage caused by the termination of this Agreement.
Indemnification of Licensor
End User represents and warrants that End User is authorized to enter into this Agreement and comply with its terms. Furthermore, End User represents and warrants that End User will at all times comply with End User's obligations under this Agreement, as well as with any and all laws, regulations, and policies that may apply to End User's use of the Licensed Work. End User agree to indemnify, defend and hold Licensor, Affiliates and the Licensor Staff harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by Licensor, in connection with or arising out of End User's violation or breach of any term of this Agreement or any applicable law or regulation, whether referenced within this Agreement or not; End User's violation of any rights of any third party; or End User's use or misuse of the Licensed Work.
Limitation of Liability
END USER UNDERSTANDS AND AGREES THAT LICENSOR AND ITS AFFILIATES WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM END USER USE OF THE LICENSED WORK OR DERIVATIVE WORKS, AS SET FORTH BELOW. IN NO EVENT SHALL LICENSOR OR ITS AFFILIATES BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSE WORK OR DERIVATIVE WORKS, EVEN IF LICENSOR OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. END USER'S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE LICENSED WORK IS LIMITED TO FIVE DOLLARS ($5). SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSIONS AND LIMITATIONS AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO END USER.
Licensor reserves the right to modify this Agreement at any time by providing such revised Agreement to End User. End User's continued use of the Licensed Work shall constitute End User's acceptance to be bound by the terms and conditions of the revised Agreement. End User understands and agrees that this Agreement constitutes the entire agreement between End User and Licensor and that it supersedes all prior understandings and agreements, in whatever form. Should any term or provision of this Agreement be deemed invalid or unenforceable by a court of law, either in its entirety or in a particular application, the remainder of this Agreement still remains in full force and effect. The failure of Licensor at any time or times to require performance of any provisions of this Agreement in no way affects Licensor's right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Licensor. Licensor is allowed to at its sole discretion assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
BY USING THE LICENSED WORK, END USER EXPRESSLY UNDERSTANDS THAT END USER HAS READ THIS AGREEMENT; UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS CONTAINED WITHIN; AND EXPRESSLY CONSENTS TO BE BOUND BY IT.