PLEASE READ THIS CAREFULLY BEFORE USING MATERIALS
A. Materials Remain Property of Licensor
You may obtain a copy of this software product either by downloading it remotely from our server or by copying it from an authorized diskette, CD-ROM or other media (“hard media”). The copyright, database rights and any other intellectual property rights in the programs and data which constitute this software product (“the materials”), together with the hard media on which they were supplied to you, are and remain the property of Swift impressions, Inc. (“the Licensor”). You are licensed to use them only if you accept all the terms and conditions set out below.
B. License Acceptance Procedure
By clicking on the acceptance button which follows this License Agreement (marked “I accept these terms and conditions”, you indicate acceptance of this License Agreement and the limited warranty and limitation of liability set out in this License Agreement. Such acceptance is either on your own behalf or on behalf of any corporate entity which employs you or which you represent (“Corporate Licensee”). In this License Agreement, “you” includes both the reader and any Corporate Licensee.
C. License Rejection Procedure
If you do not accept these terms and conditions, you should click on the button marked “I do not accept”, delete the materials from your computer and promptly (and in any event, within 14 days of receipt) return to the Licensor or a licensed reseller (a) the diskette or other media; (b) any other items provided that are part of this product; and (c) your dated proof of purchase. Any money you paid to the Licensor or a licensed reseller for the materials will be refunded, along with all costs of postage and packing.
D. Other Agreements
If your use of these materials is pursuant to an executed License Agreement, such agreement shall apply instead of the following terms and conditions.
LICENSE AGREEMENT AND LIMITED WARRANTY
1. Ownership of Materials and Copies
The Materials and related documentation are copyrighted works of authorship, and are also protected under applicable database laws. The Licensor retains ownership of the Materials and all subsequent copies of the Materials, regardless of the form in which the copies may exist. This license is not a sale of the original Materials or any copies thereof.
The Licensor grants to you a limited, non-exclusive license to:
2.1 use and copy the Materials for use on any computer system owned, leased and/or controlled by you or any member of your corporate group, which phrase includes the Corporate Licensee, the Corporate Licensee’s majority-owned subsidiaries, any parent company having a majority-owned interest in the Corporate Licensee, and such parent’s majority-owned subsidiaries;
2.2 make copies of the Materials for backup, archival or other security purposes.
3. License Restrictions
You may not use, copy, modify or transfer the Materials (including any related documentation) or any copy, in whole or in part, including any print-out of all or part of any computer code, except as expressly provided for in this License Agreement. If you transfer possession of any copy of the Materials to another party except as provided above, your license is automatically terminated. You may not translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Materials, except as expressly permitted by the law or by this Agreement. You may not vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Materials. You may not use your license to the software to gain access to and knowledge of the offered service in an effort to create a similar purposed product for the same use as the licensed software. In exchange for the creation of custom code for your particular website by Swift Impressions, Inc., you agree not use another software or service to provide the same or similar functionality as that provided by Swift Impressions, Inc. POWER Post for the complete term of this agreement. You may not resell the software, the results derived from using the software or services that are based on the use of the software if the value of those services are fundamentally based on the performance of this software. The Licensee agrees that one remedy of a breach of this License would be the payment of 100% of such revenues associated directly or indirectly with the breach of this license to be paid to the Licensor, plus interest at the highest allowable rate in the jurisdiction in which such breach occurred.
4. No Transfer
The Materials are licensed only to you. You may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise dispose of the Materials, on a temporary or permanent basis, without the prior written consent of the Licensor.
You undertake to:
5.1 Ensure that, prior to use of the Materials by your employees or agents, all such parties are notified of this license and the terms of this Agreement;
5.2 Reproduce and include our copyright notice (or such other party’s copyright notice as specified on the Materials) on all and any copies of the Materials, including any partial copies of the Materials;
5.3 Hold all drawings, specifications, data (including object and source codes), software listings and all other information relating to the Materials confidential and not at any time, during this license or after its expiry, disclose the same, whether directly or indirectly, to any third party without the Licensor’s consent.
5.4 Ensure that all the Materials and its functionality are only used for the direct benefit of the licensee.
6. Limited Warranty
6.1 Subject to the limitations and exclusions of liability below, the Licensor warrants (a) that the storage device on which the Materials are furnished or downloaded will be free from material defects under normal use; and (b) that the copy of the program in the package will materially conform to the documentation which accompanies the package. The Warranty Period is 30 days from the date of delivery to you.
6.2 The Licensor will also indemnify you for personal injury or death solely and directly caused by any gross negligence of its employees.
6.3 The Licensor shall not be liable under the said warranty above if the Materials fail to operate in accordance with the said warranty as a result of any modification, variation or addition to the Materials not performed by the Licensor or caused by any abuse, corruption or incorrect use of the Materials, including use of the Materials with equipment or other software which is incompatible or decisions made by the user based on information that is acquired beyond the scope of that which is delivered by the software..
7. No Other Warranties
The foregoing warranty is made in lieu of any other warranties, representations or guarantees of any kind, either expressed or implied, including, but not limited to, any implied warranties of quality, merchantability, fitness for a particular purpose or ability to achieve a particular result. You assume the entire risk as to the quality and performance of the Materials. Should the Materials prove defective, you (and not the Licensor nor any licensed reseller) assume the entire cost of all necessary servicing, repair or correction. The Licensor does not warrant that the Materials will meet your requirements or that its operation will be uninterrupted or error free.
8. Limitation of Liability
The Licensor’s entire liability and your exclusive remedy shall be:
8.1 The replacement of any computer code not meeting the Licensor’s “Limited Warranty” and which is returned to the Licensor together with dated proof of purchase; or
9. Exclusion of Liability
Except in respect of personal injury or death caused directly by the negligence of the Licensor, in no event will the Licensor be liable to you for any damages, including any lost profits, lost savings, loss of data or any indirect, special, incidental or consequential damages arising out of the use of or inability to use such Materials, even if the Licensor has been advised of the possibility of such damages. Nothing in this Agreement limits liability for fraudulent misrepresentation.
10. Your Statutory Rights
The license granted hereunder gives you specific legal rights and you may also have other rights that vary from country to country. Some jurisdictions do not allow the exclusion of implied warranties, or certain kinds of limitations or exclusions of liability, so the above limitations and exclusions may not apply to you. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the above limitations and exclusions shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. If any part of the above limitations or exclusions is held to be void or unenforceable, such part shall be deemed to be deleted from this Agreement and the remainder of the limitation or exclusion shall continue in full force and effect. Any rights that you may have as a consumer (a purchaser for private use as opposed to business, academic or government use) are not affected.
The license is effective until terminated by the Licensor or upon mutual agreement of both parties provided in writing. You agree upon such termination to destroy the Materials together with all copies in any form. Once downloaded and implemented by the licensee, the licensee agrees to use the downloaded code to access the functionality it is designed to provide for a minimum term of 36 months or 18 months from the most recent recent use of the code and its functionality by the licensee. Use of alternative code or services to provide this functionality is prohibited under this agreement during this period of time. The specific functionality of this code is defined as “The ability to manage the delivery of digital content to the visitors of your website and to manage the delivery of such content based on the variables, including but not limited to, the number of impressions delivered within a given time period, within a given geography, differentiated by type of viewing platform (desktop or mobile) and by type of operating system (PC, Mac, Android, iOS, etc.) and/or to be able to apply these delivered impressions based on identifying the viewing browser and the history of that browser’s activity on the managed website.”
You will comply with all applicable laws, rules, and regulations governing export of goods and information, including the laws of the countries in which the Materials were created. In particular, you will not export or re-export, directly or indirectly, separately or as a part of a system, the Materials or other information relating thereto to any country for which an export license or other approval is required, without first obtaining such license or other approval.
13. General Provisions
13.1 You agree that the Licensor shall have the right, after supplying undertakings as to confidentiality, to audit any computer system on which the Materials are installed in order to verify compliance with this software license.
13.2 Each party irrevocably agrees that the courts of the country of registration of the Licensor or its Manager shall have exclusive jurisdiction to resolve any controversy or claim of whatever nature arising out of or in relation to this Agreement and the place of performance of this Agreement shall be that country and that the laws of that country shall govern such controversy or claim. The Licensor is currently incorporated as Blognirvana.com LLC in the State of Delaware in the Country of the United States of America.
13.3 This Agreement constitutes the complete and exclusive statement of the Agreement between the Licensor and you with respect to the subject matter of this Agreement and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to that subject matter.
13.4 Any clause in this Agreement that is found to be invalid or unenforceable shall be deemed deleted and the remainder of this Agreement shall not be affected by that deletion.
13.5 Failure or neglect by either party to exercise any of its rights or remedies under this Agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity of the whole or part of this Agreement nor prejudice that party’s right to take subsequent action.
13.6 This Agreement is personal to you and you may not assign, transfer, sub-contract or otherwise part with this Agreement or any right or obligation under it without the Licensor’s prior written consent.
Should you have any questions concerning this Agreement you may contact Nicholas Jones, Swift Impressions, 875 W. McGregor Court, Suite 150, Boise, ID, 83705, USA, or by email at firstname.lastname@example.org.