END USER LICENSE AGREEMENT
This End User License Agreement, including any and all annexes, schedules, and exhibits attached hereto, and all other documents that are incorporated by reference herein, (collectively, this "Agreement"), is a binding agreement between SIGMAWEAR, LLC d/b/a “EXCLAIM” ("Licensor") and that particular Person, as defined under Section 1 herein, who has accessed the present website, which is owned or controlled by the Licensor or operated in affiliation thereof ("Licensee").
LICENSOR PROVIDES THE SOFTWARE, AS THAT TERM IS DEFINED AND STIPULATED HEREIN, SOLELY ON THE TERMS AND CONDITIONS SET FORTH BY THE PROVISIONS OF THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH SAME. BY CLICKING THE "ACCEPT" BUTTON YOU, THE LICENSEE, HEREBY: (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS AND PROVISIONS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, COPY, OR REPRODUCE THE SOFTWARE OR DOCUMENTATION, AS THOSE TERMS ARE DEFINED AND STIPULATED HEREIN.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF SAME, THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE AND ACCORDINGLY NO LICENSE MAY BE DEEMED TO HAVE BEEN GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) TO ANY SUCH SOFTWARE BY THE TERMS OF THIS AGREEMENT.
DEFINITIONS: For purposes of this Agreement, the following terms have the following meanings:
"Authorized Users" means anyone making use of the Software for the purposes of transacting with EXCLAIM and its principal web domain of sfaudioguild.com, or any other website or software officially affiliated with EXCLAIM for the purposes of uploading, downloading, and browsing various audio files, or for any other use or product officially promoted by Licensor or any of its duly authorized affiliates. No user who utilizes the Software for any purpose other than transacting with Licensor, or for any other use officially authorized by Licensor, shall be deemed an “Authorized User” under the terms of this Agreement.
"Documentation" means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software. In lieu of any separate or otherwise-specified Documentation, a website which hosts and provides access to and operation of the Software shall itself, and any related notices, warnings, instructions, descriptions, or announcements, including “pop-ups”, shall constitute the Documentation for the intents and purposes of this Agreement.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Licensee" has the meaning set forth in the preamble.
"Licensor" has the meaning set forth in the preamble.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
"Software" means any and all software accessed and/or executed by a Person when accessing any and all websites hosted or owned by the Licensor, EXCLAIM, including, without limitation, those pertaining to sfaudioguild.com. In lieu of any separate or otherwise-specified Software, any code, script, program, executable, app, or interface generated or executed by a website hosted or owned by the Licensor shall constitute a Software for the intents and purposes of this Agreement.
"Term" has the meaning set forth in Section 7.
"Third Party" means any Person other than Licensee or Licensor.
LICENSE GRANT AND SCOPE: Subject to and conditioned upon Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:
Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation.
USE RESTRICTIONS: Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
except where permitted by normal use of a web browser: reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
except as may be expressly set forth in Section 2: copy the Software or Documentation, in whole or in part;
rent, lease, lend, sell, sublicense, assign, distribute, publish, or otherwise transfer the Software, or any features or functionality of the Software, to any Third Party for any reason;
use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems;
use the Software or Documentation in violation of any law, regulation, or rule; or
use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor's commercial disadvantage.
RESPONSIBILITY FOR USE OF SOFTWARE: Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
COLLECTION AND USE OF INFORMATION:
Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used.
Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee's equipment, including but not limited to:
improving the performance of the Software or developing Updates; and
verifying Licensee's compliance with the terms of this Agreement and enforcing the Licensor's rights, including all Intellectual Property Rights in and to the Software.
INTELLECTUAL PROPERTY RIGHTS: Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall take all reasonable efforts to safeguard the Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor's Intellectual Property Rights in the Software and reasonably cooperate with Licensor, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
TERM AND TERMINATION:
This Agreement and the license granted hereunder shall remain in effect until and unless terminated as set forth herein (the "Term").
Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation and terminating any accounts or registrations held with Licensor on behalf of Licensee.
Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee breaches this Agreement. Licensor shall have the right, but not the obligation, to decree and notify Licensee that Licensee shall be prohibited from any further access to or use of the Software and/or Documentation.
Notwithstanding any of the foregoing, Licensee’s termination of this Agreement shall not relieve nor indemnify Licensee of any liabilities incurred at the time that it was in force, and Licensee agrees to be held liable for any liabilities or damages proximately caused by any acts or omissions attributable to Licensee or any of its Authorized Users prior to termination.
LIMITED WARRANTIES AND DISCLAIMER: THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATIONS SET FORTH IN SECTION 12(a) AND SECTION 12(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
EXPORT REGULATION: The Software and Documentation may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
US GOVERNMENT RIGHTS: The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Interpretation: For purposes of this Agreement, except where redundant: (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any and all annexes, schedules, or exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Choice of Law: All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
Force Majeure: Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor's reasonable control.
Entire Agreement: This Agreement, including and together with any related attachments, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Severability: If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendment and Modification: This Agreement may be unilaterally modified by the Licensor at any time. No waiver by Licensor of any of the provisions hereof shall be effective unless explicitly set forth in writing by the Licensor. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Assignment: Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion. Notwithstanding the foregoing, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement. No other delegation or transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12(g) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
Sole Benefit; No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Waiver: As to the Licensor only, no waiver of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing by the Licensor. Except as may otherwise be set forth in this Agreement, no failure to exercise or delay in exercising any of the Licensor’s rights, remedies, powers, or privileges arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any of the Licensor’s rights, remedies, powers, or privileges hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege held by the Licensor.
Notices: All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.