IMPORTANT: This is a legal agreement (the "Agreement") between you or the person or entity you represent ("you") and Tribeworks, Inc., with a principal place of business at 988 Market Street, 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 Agreement 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.
1 Scope of Agreement. This Agreement provides you with certain rights with respect to the Tribeworks iShell software product (the "Licensed Product"), as more fully specified on the order or application form we accept (the "Application"), and consisting of editor and runtime components (respectively, "Editor" and "Runtime"). The Licensed Product will be deemed to include any enhancements, modifications, updates, upgrades and/or related documentation, if any, that we may provide to you under this Agreement. Your rights with respect to the Licensed Product depend upon the membership classification in your Application. Currently, there are four types of members which are as follows: a) Members, b) Silver Members, c) Gold Members, and d) Education Members. This Agreement also covers certain services that we provide, as more fully described below (the "Services").
2 Licenses
2.1 Cross-Platform Object Code License. Subject to the provisions of this Agreement, Tribeworks grants you a limited, worldwide, non-exclusive, non-transferable, royalty-free license, without right of sublicense (except as expressly set forth below), to download, install and use the Licensed Product in object code format, for use solely by you if you are an individual, and otherwise by any of your employees and/or agents identified on the Application, for your internal purposes, provided that each such user utilizes at all times the license file identifier provided by Tribeworks for such user (the "Unique License File"). An authorized user of a Unique License File may install and use the Licensed Product on computers running validly licensed copies of an operating system compatible with the Licensed Product. If any holder of a Unique License File ceases to be employed or affiliated with you, you may transfer that Unique License File to another of your employees or agents upon written or email notice to us, provided in accordance with this Agreement. You may obtain additional Unique License Files for additional authorized users at our discretion and at our then current rates.
2.2 Distribution Rights. Subject to the provisions of this Agreement, 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 software products you create using the Licensed Product during the term of this Agreement ("Licensee Created Products"), provided that each of your sublicensees must agree to be bound by the restrictions and limitations contained in this Agreement. In addition, subject to the provisions of this Agreement, the foregoing license will be perpetual with respect to any Runtime combined with a Licensee Created Product if you do not in any way modify the Licensee Created Product after the term of this Agreement. If you modify the Licensee Created Product after the term of this Agreement, you will be required to obtain a new license to the Licensed Product in order to sublicense or distribute the modified version of Licensee Created Product, which license may be granted at our sole discretion.
2.3 Limited Source Code License. If you are a Silver Member who received the SDK or a Gold Member, as indicated on your Application, then subject to the provisions of this Agreement, Tribeworks grants you a limited, worldwide, non-exclusive, non-transferable, royalty-free license to: (a) download and use the Source Code, as defined below, to create, develop and make Licensee Created Products and other Derivative Works, as defined below; and (b) to sublicense, display and distribute Licensee Created Products and Derivative Works that are developed, created and/or made using the Source Code only to other Silver Members and/or Gold Members; provided, however, that no such Licensee Work or Derivative Work shall contain any Editing Functionality, as defined below. "Source Code" means human readable code for the Licensed Product, 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. "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.
2.4 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 Licensed Product that you use, create or distribute, including without limitation any Runtime.
2.5 Member Restrictions. If you are a Member, as indicated on your Application, you may exploit the rights granted to you under Sections 2.1 and 2.2 for Non-Commercial Purposes only, as defined below. You may exploit the Runtime rights granted under Section 2.2 above only if you reproduce, display, and distribute your Unique License File(s) in connection with each copy of each Runtime. In addition, if your are a Member, the licenses described in Section 2.3 do not apply to you, and you will have no rights to access, use or distribute any Source Code. "Non-Commercial Purpose" means a purpose from which you do not, and should not expect to, derive any economic, commercial or material gain, either directly or indirectly.
2.6 Education Member Restrictions. If you are an Education Member, as indicated on your Application, you may exploit the rights granted to you under Sections 2.1 and 2.2 for Education Purposes only. "Education Purpose" means a Non-Commercial purpose by an educational institution other then for instructional or self-promotional purposes.
2.7 General Restrictions. Except as otherwise expressly permitted in this Agreement, 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 Licensed Product; (b) concurrently use the Licensed Product 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 Licensed Product, 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 Ownership. Except for the rights expressly granted in this Agreement, as between you and us, Tribeworks retains all right, title and interest in and to the Licensed Product, the Source Code, and any content and technology contained on or associated with the Site (defined below). Without limiting the foregoing, we may in our discretion update or modify the Licensed Product, including without limitation the Source Code. You will not have any rights with respect to any such updates or modifications unless we provide the same to you in our discretion, or except as otherwise expressly set forth on the Application.
4 Support and Training Services. Tribeworks will provide you with certain support and training services in connection with the Licensed Program ("Support 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/supportandtrainingpolicy. We reserve the rights to change our support policies at any time, which changes will be effective upon posting on our web site.
5 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 Agreement, 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 Privacy Policy. Certain personally identifying and other information that you provide to us is subject to our Privacy Policy, a current version of which may be viewed at http://www.tribeworks.com/privacypolicy
7 Third Party Links and Advertising. Our Site 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.
8 License to Content. Subject to Section 6 above, with respect to all information and feedback concerning the Licensed Product 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.
9 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.
10 Fees, Payment and Taxes. You will pay all fees associated with the Licensed Product and your membership ("Fees") in advance, as set forth on your Application, and you will have no rights under this Agreement 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 Application, 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.
11 Term and Termination. This Agreement and the rights and licenses granted under this Agreement will continue in effect for a period of one (1) year from the date you click the "I Agree" button below, unless earlier terminated as described below. This Agreement 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 Agreement, we may immediately terminate this Agreement and the rights hereunder upon immediate notice to you. Upon expiration of the one (1) year term of this Agreement, all of your rights hereunder will terminate except for the limited distribution rights described in Section 2.2 above, subject to any restrictions contained elsewhere in this Agreement. Upon termination of this Agreement by us due to your breach, such distribution rights will automatically terminate as well. You will cease using and delete all copies of the Licensed Product in your possession or control, immediately upon termination or expiration of this Agreement, 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 Agreement, the following provisions will survive: 2.4, 2.7, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16.
12 Disclaimer of Warranties. YOU AGREE THAT YOUR USE OF THE LICENSED PRODUCT, OUR SERVICES, OUR WEB SITE AND ANY ASSOCIATED PRODUCTS, SERVICES, CONTENT AND TECHNOLOGY WILL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF EVERY KIND, EXPRESS AND IMPLIED, WITH RESPECT TO THE SAME, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE ARE ADVISED OF SUCH PURPOSE), ACCURACY, UNINTERRUPTED SERVICE, ERROR-FREE SERVICE AND AGAINST INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, WHICH YOU OBTAIN FROM ANY OF OUR EMPLOYEES OR AGENTS WILL CREATE ANY SUCH WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES, SO CERTAIN OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
13 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 AGREEMENT 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 AGREEMENT 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.
14 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 Agreement; (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 Licensed Product 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.
15 Notice. We may provide notice to you either by email or regular mail to the address you provide to us in your Application. You may provide notice to us at the following addresses: sales@tribeworks.com or info@tribeworks.com
16 General. This Agreement, together with the Application and any of our policies referred to herein, all of which are hereby incorporated in this Agreement, constitute the entire agreement 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 Agreement 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 Agreement 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 Agreement 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 Licensed Product, including without limitation all applicable import and export regulations. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If you are an agent or agency of the United States government, the Licensed Product 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 and not to both of the parties collectively. The headings and section titles in this Agreement are for convenience only and shall not constitute a part of this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should attempt to give effect to the parties' intentions as reflected in the provision to the extent possible, and the remaining provisions of this Agreement shall remain in full force and effect.
Copyright (c) 1998-2000 Tribeworks, Inc. All rights reserved.
