EULA - End User License Agreement
Siteswish End User License Agreement
The individual installing or using this software represents and warrants that he or she has authority to enter into this agreement with Siteswish on behalf of the Licensee, that he or she has read the terms and conditions set out herein and that the Licensee accepts and agrees to be bound by this agreement. If the Licensee does not agree with the terms and conditions, the Licensee must not use or permit the use of the Product.
Authorised Machine means a single installation of a copy of the Product on a single physical computer.
Authorised Use means the defined number of copies or instances of the Product that may be used by Licensee, and where applicable, limited to the number of Authorised Machines, as designated in the Quote/Receipt/Invoice issued by Siteswish.
Authorised User means a person or user account who is Licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee.
Commencement Date means the date that Siteswish processes payment of the License or Maintenance Fees from Licensee.
License means the right to use the Product as defined by Authorised Use.
Licensee means the individual or entity (inclusive of subsidiaries) that has licensed the Product under the terms and conditions of this agreement.
Siteswish means Ben Lambert of 461-0005 2-3-7-1136 Higashisakura, Higashi-ku, Nagoya-shi, Aichi-ken, Japan
Product means the Siteswish product defined in the Quote/Receipt/Invoice delivered by Siteswish to Licensee, including any documentation and updates provided under the terms of this agreement in accordance with Clause 5
Protected Code means source code contained within the Product that is protected against access by Siteswish.
2. License Fee
A one-time fee paid by Licensee to Siteswish, as designated by Product, in consideration for the Authorized Use of the Product. License fee is non-refundable and payable upon acceptance of the terms and conditions set out herein.
3. Grant of License
Subject to the terms of this agreement, including limitations defined by the License, Siteswish grants to Licensee, and Licensee accepts from Siteswish, a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable License to use the Product as defined by Authorised Use.
4. No Warranty
Save as provided in clauses 13 and 14 below, the Product is provided on an "as is" and "as available" basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that Siteswish does not warranty that the Product will be error-free, complete, or correct. Siteswish provides evaluation copies of the Product so that customers can assess the Product.
5. Siteswishs Obligations
Upon receipt of Licensee Fee from Licensee, Siteswish will (a) supply the Licensee with the Product via electronic download; and (b) provide Software Maintenance as defined in Section 6, for a period of twelve (12) months from the Commencement Date (the "Initial Maintenance Period").
6. Software Maintenance
Software Maintenance includes Siteswishs provisioning to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical support via online forums only (no email, instant messenger or phone support) to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product. for a period of twelve (12) months from the Commencement Date (the "Initial Maintenance Period"). No additional support will be provided after the Initial Maintenance Period.
7. Licensee Obligations
The Licensee must at all times: (a) ensure that only an Authorised User may use the Product and only for Authorised Use in accordance with the terms and conditions of this agreement; (b) install all updates and enhancements provided by Siteswish; (c) immediately advise Siteswish, including in writing, if the Licensee becomes aware of any unauthorised use or distribution of the Product by any person; and (d) with respect to any use of the Product, include an attribution to Siteswish to be included on all web pages in the following format: "Designed with Siteswish", which must in every case include a hyperlink to http://www.siteswish.com, which must be in a format that can created using the Product, and which must be clearly visible to a vistor of the web page (including, but not limited to, the requirement that the color of the text must be distinct from the color of the background behind the text).
8. Unauthorised Use or Distribution
Licensee may not, whether through deliberate or negligent act or act of omission, distribute or cause the distribution of the Product to any third party other than an Authorised User. Licensee is required to immediately report its knowledge of any violations of the foregoing to Siteswish, including in writing. Any such violations will entitle Siteswish to, in addition to any other right or claim that Siteswish may have against Licensee, retroactively charge the Licensee, in addition to any other fees payable by the Licensee under this agreement, a fee calculated based on the number of prohibited distributions times the respective list prices that Siteswish charges for the Product.
9. Investigation of Unauthorised Use and Distribution
If Siteswish reasonably suspects that the Product has been distributed to or obtained by any person or party without Siteswishs prior written consent, Siteswish has the right to request from the Licensee an unqualified certificate executed by the Licensees auditor at the Licensees cost for the purpose of verifying compliance with Authorised Use of the Product.
10. Licensees Restrictions
Licensee must not, without the prior written consent of Siteswish, which may be withheld and which may include certain conditions: (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, the Protected Code; (b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Licensee through the Product to a person (except that nothing in this paragraph (b) is intended to prevent an Authorised Person undertaking Authorised Use); (c) vary or amend the Authorised Use without Siteswishs prior written approval; (d) publish, promote, broadcast, circulate or refer publicly to the Siteswish name, trade name, trademark, service mark or logo, without the prior written consent of Siteswish; (e) commit any act or omission the likely result of which is that Siteswishs reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Siteswishs interests. In addition, the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Siteswish. Licensee must not modify or alter those features to try to defeat the Product use rules that the license protection mechanisms are designed to enforce.
The term of this agreement begins on the Commencement Date and will continue in full force and effect until terminated in accordance with Clause 12.
You may terminate this agreement at any time by destroying all copies of the Product in your possession. Either party may terminate this agreement if the other party commits a material breach. Either party will have thirty (30) days to remedy any material breaches after written notice of such breach. You agree upon termination of this License to destroy all copies of the Product in your possession. Clauses 1, 2, 4, 8 - 10, 14 - 15, 18, and 19 shall survive any termination of this agreement.
13. Infringement Indemnification
(a) Siteswish will defend or settle, at its expense, any action brought against Licensee based upon the claim that the Product, if used within the scope of the License granted under this agreement, directly infringe a registered United States, European Union, Commonwealth or Japanese patent or copyright; provided, however, that: (i) Licensee shall notify Siteswish promptly in writing of any such claim; (ii) Licensee shall not enter into any settlement or compromise any claim without Siteswishs prior written consent; (iii) Siteswish shall have sole control of any such action and settlement negotiations; and (iv) Licensee shall provide Siteswish with information and assistance, at Siteswishs request and expense, necessary to settle or defend such claim. Siteswish agrees to pay all damages and costs finally awarded against Licensee attributable to such claim. The foregoing states the sole liability of Siteswish and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Product or any other items provided by Siteswish hereunder.
(b) If the Product becomes, or in the opinion of Siteswish may become, the subject of a claim of infringement of any third party right, Siteswish may, at its option and in its discretion: (i) procure for Licensee the right to use the Product free of any liability; (ii) replace or modify the Product to make it non-infringing; or (iii) refund any license fees related to this Product paid by Licensee.
(c) Exclusions from Defense Obligation. Siteswish will have no duty to defend any IP Claim to the extent such IP Claim is based on: (i) use of a superseded release of the Product, if such infringement would have been avoided by the use of a current release of the Product and Siteswish timely notified Licensee of the availability of the non-infringing Product at no additional cost; (ii) the combination, operation, or use of the Product with programs or data not furnished by Siteswish or with hardware or operating system software other than the hardware platform and operating system with which the Product is designed to function, if such infringement would have been avoided by the use of the Product without such programs, data, hardware or operating systems; (iii) modification or attempted modification of the Product by anyone except Siteswish or use or distributions of such modifications; or (iv) Licensees use of the Product in a manner that results in defamation, violates the privacy rights of individuals, transmits material in violation of any applicable law, rule, regulation, or uses any proprietary thirty party content without legally binding consent of such third party.
(d) To the extent an IP Claim is excluded from Siteswishs defense obligation, is based upon the claim that any modifications to the Product or combination of the Product with products infringes or violates any third party right or is based on a breach of this Agreement by Licensee, Licensee will defend or settle, at its expense, any action brought against Siteswish provided, however, that: (i) Siteswish shall notify Licensee promptly in writing of any such claim; (ii) Siteswish shall not enter into any settlement or compromise any such claim without Licensees prior written consent; (iii) Licensee shall have sole control of any such action and settlement negotiations; and (iv) Siteswish shall provide Licensee with information and assistance, at Licensees request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Siteswish attributable to such claim. Siteswish may elect to assume control of the defense and settlement of any such claim with counsel of its choosing; provided however, that if Licensee will not have breached its defense and settlement obligations hereunder, Licensee will have no obligation to pay the costs and expenses of such Siteswish-controlled defense or settlement.
(e) Notwithstanding Subsection (a) above, Siteswish assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorneys fees for, any claim based upon any modifications to any of the Product not approved by Siteswish or combination of any of the Product with products not approved by Siteswish.
14. Limitation of Liability
Without limitation, Siteswish will not be liable to any person for any loss, damage, cost, expense or other claim (including consequential, directly, indirect, special, punitive or other damages and loss of data or profits) in relation to the Product including, without limitation: (a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in a Product); (b) any delay, interruption or other failure in the provision of the Product; or (c) any change in the form or content of the Product. In no event will Siteswishs and Siteswishs licensors aggregate liability under any claims arising out of this agreement exceed the fees paid by licensee under this agreement. Except for each partys indemnification obligations or breach of Clauses 2, 8 or 10, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Clause 4 are not allowed by applicable law, then the liability of Siteswish, and the remedy of Licensee, shall be limited to: (i) the re-supply of any defective Product; or (ii) the refund of any license fees paid by Licensee for such defective Product.
15. Ownership/Intellectual Property
This Agreement only confers the right to use the Product and does not convey any rights of ownership in or to the Product. The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of Siteswish and Siteswish is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product.
16. Publicity Rights
(a) The Licensee grants Siteswish the right to include the Licensee as a customer in Product promotional material.
(b) Licensee can deny Siteswish this right by submitting a written request via email to email@example.com, requesting to be excluded from Product promotional material. Confirmation of such denial (via reply email) must be received prior to purchasing for this to be effective.
(c) Should the customer come to be or already be included in Product promotional material, as a result of any prior purchases where the Licensee did not request exclusion from Product promotional material, the Licensee can at any point in time, submit a written request via email to firstname.lastname@example.org to have Siteswish remove the Licensees name from Product promotional material. Upon receipt of such request, Siteswish will remove any reference to the Licensee from such promotional material within 30 days and make no further reference to the Licensee.
17. No Assignment or Amendment
Licensee may not amend this Agreement without prior written consent of Siteswish. Licensee may assign this agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, Siteswish is notified in writing within ninety (90) days of the closure of such transaction. If Licensee merges into or with a direct competitor of Siteswish, as determined in Siteswishs sole discretion, then this Agreement will automatically terminate as of the effective date of such merger. Siteswish may assign its rights and obligation under this agreement without consent of Licensee.
Payments made by the Licensee under this agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by Siteswish, the Licensee must pay to Siteswish the amount of such taxes or duties in addition to the license fee under this agreement unless Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. Siteswish will provide the Licensee with documents requested by Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit.
19. Governing Law
This agreement is made in Japan and shall be construed and enforced solely in accordance with Japanese law. Should any dispute arise out of or in connection with this agreement, the Nagoya District Court shall have exclusive jurisdiction.