IMPORTANT: This end-user product license and membership agreement (the "EULA") between you or the person or entity you represent ("you") and Tribeworks, Inc., with a principal place of business at 988 Market Street, 4th Floor, San Francisco, California 94102 ("Tribeworks," "we" or "us"). It is important that you read this document before clicking the "I Agree" button below. By clicking the "I Agree" button, you acknowledge that you have read this EULA and agree to be bound by its terms. If you do not so agree, click the "I Do Not Agree" button below and do not attempt to continue with the download process.
THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY TRIBEWORKS HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
1. Definitions
(a) "Education Version" means a version of the Software, so identified, for use by students and faculty of educational institutions, only.
(b) “Education Member” mean a person who purchased a Tribeworks Education Membership and whose membership is active.
(c) "End User Product" means an Output File, which uses the Tribeworks Runtime, generated by you. Examples of End User Products include the courseware and corporate presentations.
(d) "Derivative Work" means a "derivative work" or "compilation" as those terms are defined in the United States Copyright Act. "Editing Functionality" means any functionality similar to that of the Editor or that otherwise permits the creation and/or modification of the iShell document file format.
(e) “Gold Member” mean a person who purchased a Tribeworks Gold Membership and whose membership is active.
(f) “Output File” means an output file generated by you using the Software.
(g) “Silver Member” mean a person who purchased a Tribeworks Silver Membership and whose membership is active.
(h) "Runtime" means that portion of the Software required in order for the End User Product to operate on hardware on which the Software itself is not resident.
(i) "Software" means only the Tribeworks software program(s) and third party software programs, in each case, supplied by Tribeworks herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.
(j) "Source Code" means human readable code for the Software, as provided by Tribeworks to you, that may be converted into machine readable language by the use of compilers, assemblers and/or interpreters, and includes code that has been compiled but requires linking into binary code in order to be machine readable.
(k) "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.
2. License Grants
2.1 Distribution Rights. Subject to the provisions of this EULA, Tribeworks grants you a limited, worldwide, non-exclusive, non-transferable, royalty-free license to reproduce, display, sublicense and distribute Runtimes in object code form when combined with End User Products created with the Software during the term of this EULA, provided that each of your sublicensees must agree to be bound by the restrictions and limitations contained in this EULA. In addition, subject to the provisions of this EULA, the foregoing license will be perpetual with respect to any Runtime combined with an End User Product if you do not in any way modify the End User Product after the term of this EULA, with the exception that after the term of this EULA content modification is allowed. Any changes to an End User Product’s interactivity, design or interface constitute the necessity of a Commercial or Educational License. If you do not have an active Commercial or Educational License one must be purchased to make the changes stated above.
2.2 Limited Source Code License. If you are a Gold Member, as indicated on your invoice, then subject to the provisions of this EULA, Tribeworks grants you a limited, worldwide, non-exclusive, non-transferable, royalty-free license to: (a) download and use the Source Code to create, develop and make End User Products and other Derivative Works; and (b) to sublicense, display and distribute End User Products and Derivative Works that are developed, created and/or made using the Source Code only to or Gold Members; provided, however, that no such Licensee Work or Derivative Work created from Tribeworks source code shall allow the creation of .XP, .XD, or XML files. Nothing in this agreement allows you to redistribute the source code provided.
2.3 Proprietary Rights Notices. You may not deface, obscure or fail to reproduce any copyright or other proprietary rights notice specified by Tribeworks on any copy of the Software that you use, create or distribute, including without limitation any End User Product or Runtime.
2.4 General Restrictions. Except as otherwise expressly permitted in this EULA, you may not do any of the following, nor may you authorize any third party to do any of the following: (a) modify, reproduce, create any Derivative Work from, display, distribute, sell, sublicense, transfer or encumber any portion of the Software; (b) concurrently use the Software on more than one computer or by more than one user; or (c) decompile, reverse engineer, translate, disassemble or otherwise attempt to discover any source code associated with the Software, except as may be required by applicable law. To the extent that you have a limited decompilation right under applicable law in order to achieve interoperability with other, independently-created programs, you will not exercise that right unless you first give us the opportunity to provide information required to create interoperable programs by means of written notice to us, and we fail to supply the required information within a reasonable time.
3. License Restrictions
(a) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
(b) You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
(c) You may not rent, lease, sell, assign or sublicense the Software.
(d) End User Products created with Trial Versions of the software may not be distributed or used for any commercial purpose, from which you derive or expect to derive any economic, commercial or material gain, either directly or indirectly.
(e) Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) use or distribute any End User Product of the Trial Version of the Software for any commercial purpose and (E) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to the Software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
(f) You may not export the Software or any End User Product into any country prohibited by the United States Export Administration Act and the regulations thereunder.
(g) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed.
(h) In the event that you fail to comply with this EULA, Tribeworks may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
4. Upgrades
If the copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and that you will not continue to use the earlier version of the Software or transfer it to another person or entity for any reason whatsoever without written consent from Tribeworks.
5. Support,Training Services, and Use of Tribeworks Website
5.1 Tribeworks will provide Gold, Silver and Education members with certain support and training services, consistent with Tribework's then current support policies for your membership class. Our current support and training policies are located at http://www.tribeworks.com/member/support.asp. We reserve the rights to change our support policies at any time, which changes will be effective upon posting on our web site.
5.2 Web Site Services Generally. We provide the users of our web site, currently located at http://www.tribeworks.com (the "Site"), with Services that include access to a wide variety of Internet content and resources. Any added features changing, enhancing or supplementing the current Services will constitute a part of the Services and be subject to this EULA, unless expressly stated otherwise. We may at any time modify or discontinue our Services, with or without notice. We will not be liable to you or any third party for any modification, suspension or discontinuation of our Services.
6. Ownership
The foregoing license gives you limited license to use the Software. Tribeworks and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Tribeworks and its suppliers.
7. LIMITED WARRANTY AND DISCLAIMER
(a) TRIBEWORKS PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. THE TRIAL VERSION OF THE SOFTWARE ARE PROVIDED “AS IS”.
(b) EXCEPT AS SET FORTH IN THIS SECTION WITH RESPECT TO SOFTWARE OTHER THAN THE TRIAL VERSION OF THE SOFTWARE, TRIBEWORKS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. TRIBEWORKS DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. TRIBEWORKS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
(d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
(e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRIBEWORKS, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
8. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TRIBEWORKS OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR LOST REVENUES OR COST OF SUBSTITUTE GOODS OR SERVICES, ARISING UNDER THIS EULA OR IN CONNECTION WITH ITS SUBJECT MATTER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TRIBEWORKS' LIABILITY ARISING UNDER THIS EULA AND/OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE LESSER OF A) ONE THOUSAND U.S. DOLLARS ($1,000), OR B) THE AMOUNTS PAID BY YOU HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW CERTAIN OF THE ABOVE EXCLUSIONS AND LIMITATIONS, SO NOT ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY APPLY TO YOU.
10. Indemnification
You will indemnify, defend and hold Tribeworks and its directors, employees, agents and affiliates harmless from and against all damages, losses, liabilities, expenses (including without limitation reasonable attorneys' fees) and costs associated with any action, claim or suit by any third party ("Claim") arising out of or relating to: (a) any breach, or alleged facts that if proven would constitute a breach, by you of this EULA; (b) any infringement or misappropriation of any third party right by any Submitted Content, Derivative Work or Licensee Created Product, unless such infringement or misappropriation relates solely to the Licensed Program; (c) any alteration, modification or customization of the Software by any person or entity other than Tribeworks, to the extent that the Claim would not have arisen in the absence of such alteration, modification or customization; or (d) your negligence, fraud or willful misconduct.
11. Third Party Links and Advertising
Our website may display links to other web sites and resources. We have no control over such sites and resources. Therefore, we are not responsible for the availability of those sites and resources. In addition, we do not endorse and are not responsible for any associated content, advertising, products, services or materials available on or from any such sites or resources, nor are we liable for any damage or loss in connection with any use of or access to the same. Your dealings with any parties who advertise on our Site are solely between you and such advertisers. We are not responsible for any loss or damage incurred by you or any third party as a result of those dealings.
12. License to Content
With respect to all information and feedback concerning the Software or our services that you provide to us or any other information or content that you post on our Site (collectively "Submitted Content"), you grant to us a fully-paid-up, perpetual, irrevocable, non-exclusive and fully sublicensable right and license to use, reproduce, modify, publish, translate, create Derivative Works from, transmit, disclose, distribute, display and perform the Submitted Content, in whole or in part, worldwide, and to incorporate it in other works in any from, media or technology now or later developed. It is possible that we will not pre-screen certain Submitted Content on our site. However, we have the absolute right and discretion, but not the obligation, to reject, modify or remove any Submitted Content from our Site.
13. Your Conduct Generally
You will not do any of the following on our site or in connection with our services: (a) submit any Submitted Content that is illegal, abusive, threatening, obscene or defamatory; (b) submit any Submitted Content that you are prohibited from submitting under any law, or contractual or fiduciary relationship; (c) submit any Submitted Content in violation of any intellectual or proprietary right of any third party; (d) upload or submit any material containing any virus or harmful code; (e) attempt to disguise the origin of any Submitted Content; or (f) interfere with our Site or Services in any way.
14. Fees, Payment and Taxes
You will pay all fees associated with the Software or becoming a Gold, Silver, or Education Member ("Fees") in advance, as set forth on your invoice, and you will have no rights under this EULA until ALL Fees have been paid. All Fees must be paid in United States dollars in immediately available funds. Unless expressly stated otherwise in your invoice, the Fees do not include any applicable foreign or domestic taxes, duties, excises or the like, all of which will be paid by you, except taxes based on our net income.
15. Term and Termination
This EULA and the rights and licenses granted under this EULA will continue in effect for a period indicated on your invoice, unless earlier terminated as described below. This EULA will renew only with our express written consent, which may be given in our sole discretion. If we reasonably determine that you have breached this EULA, we may immediately terminate this EULA and the rights hereunder upon immediate notice to you. Upon expiration of this EULA, all of your rights hereunder will terminate except for the limited distribution rights described in Section 2.1 above, subject to any restrictions contained elsewhere in this EULA. Upon termination of this EULA by us due to your breach, such distribution rights will automatically terminate as well. You will cease using and delete all copies of the Software in your possession or control, immediately upon termination or expiration of this EULA, except with respect to any Runtimes in which you have the continuing rights described above. In the event of any termination or expiration of this EULA, the following provisions will survive: 2.3, 2.4, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.
16. Notice
We may provide notice to you either by email or regular mail to the address you provide to us in your invoice. You may provide notice to us at the following addresses: sales@tribeworks.com or info@tribeworks.com.
17. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
This Software and the documentation are provided with "RESTRICTED RIGHTS” applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: Tribeworks, Inc., 600 Townsend, San Francisco, CA 94103.
18. (Outside of the USA) Consumer End Users Only
The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
19. General
This EULA, together with the invoice and any of our policies referred to herein, all of which are hereby incorporated in this EULA, constitute the entire EULA between you and us with regard to the subject matter set forth herein, and supersede any prior agreements between you and us, whether written or oral, with respect to that subject matter. This EULA may be amended only in writing signed by both parties, except that we may in our discretion amend any policy referred to herein by posting the amended policy on our site. You may also be subject to additional terms and conditions when you use affiliate services or third party content or software. This EULA and the relationship between you and us will be governed by applicable U.S. federal and California state laws, without regard to conflict of laws provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods. In any dispute arising out of or in connection with this EULA or its subject matter, you and we agree to submit to the exclusive jurisdiction and venue of the California state and U.S. federal courts located in and serving the City and County of San Francisco, California, USA. We may, however, seek injunctive relief in any court of competent jurisdiction. You agree that you will at all times comply with all applicable U.S. domestic and foreign laws and regulations in your performance hereunder and with respect to the Software, including without limitation all applicable import and export regulations. Our failure to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. If you are an agent or agency of the United States government, the Software is a "commercial item," consisting of "commercial computer software" and "commercial computer software documentation," as those terms are defined in the applicable Federal Acquisition Regulations and Department of Defense Federal Acquisition Regulations. The terms "we," "us" and "our" refer solely to Tribeworks. No Tribeworks dealer, agent or employee is authorized to make any amendment to this EULA. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect. All questions concerning this EULA shall be directed to: Tribeworks, Inc., 988 Market Street, 4th Floor, San Francisco, CA 94102, Attention: General Counsel.
