CAREFULLY READ THE FOLLOWING LICENCE AGREEMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.
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“You” or “Your” means the person or company who is being licensed to use the Licensor software in association with this Agreement. “We”, “Our” and “Us” means Blavity, Inc.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows:
1.1. Definitions. Capitalized terms in this Agreement will have the following meanings:
- “Agreement” means this Software Licence Agreement between Us and You;
- “Licensed Software” means certain commercial software products being provided to You under this Agreement;
Other capitalized terms have the meanings defined in the Usage Agreement.
2. SOFTWARE LICENCE, RIGHTS & RESTRICTIONS
2.1 Software Licence and Rights. Subject to and conditioned on your payment of Fees and compliance with all the terms and conditions of this Agreement, We hereby grant to You a revocable, non-exclusive licence to use the Licensed Software solely in order to utilize the Products and Services as provided under this Agreement.
2.2 Restrictions. Without limiting the generality of the foregoing, You will use the Licensed Software only for purposes set forth herein, and, further, You expressly agree that You DO NOT have rights to:
(a) own title, or transfer title to the Licensed Software to another party;
(b) distribute, or sublicense or otherwise provide copies or any rights in relation to the Licensed Software to any third party;
(c) pledge, hypothecate, alienate or otherwise encumber the Licensed Software to any third party;
(d) use the Licensed Software to rent, lease or otherwise provide location-enabled telecommunication or information services to Your customers, including, without limitation, data processing, hosting, outsourcing, service bureau or online application services (ASP) offerings; or
(e) modify, enhance, reverse-engineer, decompile, disassemble or create substantially derived forms of the Licensed Software.
2.3 Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions.
2.4 Our Obligations. Upon acceptance of the terms of this Agreement, We will:
(a) permit You to download a copy of the most current version of the Licensed Software for Your use under this Agreement; and
(b) provide You with ongoing updates to the Licensed Software as We consider needed. In each such case, We will automatically provide and install the necessary updates and will notify You when the update has been installed.
3. COPYRIGHT AND MARKS
3.1 Copyright. The Licensed Software, including any documentation, media, packaging and illustrations, is copyrighted and constitutes Our valuable property. You agree that all physical manifestations of the Licensed Software will display Our copyright notice in a conspicuous manner. The Licensed Software is protected under the United States Copyright Laws. You Will have a right to copy the materials, provided copyright notices and acknowledgement of trade-marks are included, pursuant to the covenants herein. You will include the following notice on any printed, electronic, online or packaged version of the Licensed Software, in any form whatsoever:
“Copyright © [date] Licensor [formal name of owner]
All rights reserved.”
3.2 Trade-marks. Certain logos, product names and trade-marks owned by Us may be contained within the printed materials and electronic manifestations of the Licensed Software. You will have no right to use such marks in its end-user applications except as set out in this Agreement.
4.1 Title. You acknowledge that the Licensed Software, including any associated written materials and other documentation provided under this Agreement, belongs exclusively to Us. Unencumbered title to the Licensed Software will, at all times, remain with Us. You agree to protect the Licensed Software from unauthorized use, reproduction, distribution or publication in electronic or physical form.
5. WARRANTY AND INDEMNITY
5.1 Warranty. We warrant that We are the owner of the Licensed Software and have the right and authority to grant the licence to the Licensed Software. We do not warrant, guarantee, accept any condition or make any representation that the Licensed Software will meet Your requirements or that the use of the Licensed Software will be uninterrupted or error-free. No other verbal or written information provided by Us will create a warranty or in any way increase Our liability, and You will not rely on such information.
5.2 Indemnity. We warrant that the Licensed Software does not infringe on any current subsisting and enforceable patent or copyright, and We will and hereby do agree to indemnify and hold You harmless in respect of any losses, costs, damages or expenses (including reasonable attorney’s fees and court costs) arising out of any claim, demand or action alleging that the Licensed Software violates or infringes the copyright, patent or other intellectual property right of any third party, provided that You provide Us with reasonable cooperation in preparing a defence against any such claim.
5.3 DISCLAIMER. THERE ARE NO WARRANTIES FOR SERVICES. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES OR ACCEPT ANY CONDITIONS EXCEPT THOSE EXPRESSLY STATED IN SECTIONS 5.1 AND 5.2 ABOVE. WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME PROVINCES DO NOT PERMIT THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS. THEREFORE, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.
6. LIMITED WARRANTY AND WARRANTY DISCLAIMER
- LIMITED WARRANTY AND WARRANTY DISCLAIMER.
- We warrant that we provide the Licensed Software using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND WE STRICTLY DISCLAIM ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to any data provided by you (“Customer Data”) and that both the Customer Data and your use of the Licensed Software are in compliance with all applicable laws.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6, THE CLOUD SERVICES ARE PROVIDED “AS IS” AND WE SPECIFICALLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
7. SUCCESSORS AND ASSIGNS
7.1 Successors and Assigns. You may not assign Your rights and duties under this Agreement to any party at any time. This Agreement will enure to the benefit of and will be binding on Us and our respective successors and permitted assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, We will have the right to transfer and assign Our rights and obligations hereunder to any third party (the “Assignee”), upon written notice to You, provided that We cause the Assignee to agree in writing to all the terms contained in this Agreement.
8.1 Upgrades. Other than our obligation under Section 2.4(b), We shall have no other obligations to provide updates or support services to You. Obligations or expectations with regard to product upgrades, enhancements, support or remedies for errors, defects or deficiencies will be limited to those expressly set forth in a separate agreement between Us and You. In the absence of such an agreement between Us and You, We will use reasonable efforts to provide ongoing support and remedies to identified errors and defects, on a time and material basis, at Our then current commercial rates.
9.1 Confidentiality. You acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that they have received or will receive in connection with this Agreement, is considered private and confidential (the “Confidential Information”). You will use reasonable diligence and in no event less than the degree of care which We use in respect to our own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude:
(a) information that is already in the public domain;
(b) information already known to the receiving party, as of the date of the disclosure, unless the receiving party agreed to keep such information in confidence at the time of its original receipt;
(c) information hereafter obtained by the receiving party, from a source not otherwise under an obligation of confidentiality with the disclosing party;
(d) information that the receiving party is obligated to produce under order of a court of competent jurisdiction, provided that the receiving party promptly notifies the disclosing party of such an event so that the disclosing party may seek an appropriate protective order.
10. Term and Termination.
- Term. The Term of this Agreement begins on the acceptance date and continues until terminated. The services provided herein are specified to automatically renew will renew unless terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal.
- Termination. In addition to any other express termination right set forth in this Agreement:
- We may terminate this Agreement for any reason upon seven (7) days’ advance notice. You may terminate this Agreement automatically at the end of any subscription period.
- Effect of Termination. Upon termination of this Agreement, You shall immediately discontinue use of the Licensed Software. No expiration or termination of this Agreement will affect Your obligation to pay all fees that may have become due before such expiration or termination, or entitle You to any refund.
11.1 Consents. Any consent required under this Agreement will not be unreasonably withheld.
11.2 Captions. The Article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
11.4 Equitable Relief. You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
11.5 Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
11.6 Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
11.7 Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
11.8 Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
11.9 JURISDICTION. THE PARTIES HEREBY IRREVOCABLY ATTORN TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA WITH RESPECT TO ANY DISPUTE ARISING HEREUNDER.
11.11 GOVERNING LAW. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA. 11.12 Revisions to this Agreement. We may at any time revise the terms of this Agreement by updating these terms and by providing notice to you of that change.