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LICENSE
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Widen Commercial License Agreement
This Fine Uploader Subscription and Support Agreement (the “ SSA ”) is entered into
between Widen Enterprises, Inc., a Wisconsin corporation having its principal United
States offices at 6911 Mangrove Lane, Monona, WI 53713 (“ Widen ”), and the individual,
corporation or other business entity (“ Customer ”) identified as the Customer by downloading
the commercial version of Fine Uploader Software. Widen and Customer may be referred to
individually as a “ Party ” and collectively as the “ Parties ”.
Widen offers this SSA for our commercial customers who require the use of Fine Uploader
in a commercial context.
For purposes of this SSA, the term “ Fine Uploader Software ” shall mean Fine Uploader
software delivered or made available in source or object form.
For purposes of this SSA, the term “ Fine Uploader Support ” shall mean software maintenance
releases and software support as described below for the Fine Uploader Software.
This SSA shall become effective upon Customer downloading a commercial copy of Fine
Uploader Software (“ Effective Date ”). By downloading a commercial version of Fine Uploader
Software, Customer agrees to this SSA.
Terms and Conditions
Grant of Commercial Subscription Software License.
The license described in this section applies to Fine Uploader Software identified or
described at fineuploader.com. Widen hereby grants Customer a non-exclusive,
non-transferable, non-assignable, non-sublicenseable license (“ Subscription License ”) to
use, solely for use in the Customer’s software application, the object code of Fine Uploader
Software for the Term specified herein, and subject to the limits of use authorized for
Fine Uploader Software (the “ Limits ”). During the Term of the Subscription License for
Fine Uploader Software, Customer is authorized to create as many copies of Fine Uploader
Software as are strictly necessary to support the Limits of use authorized.
Restrictions on Distribution and Copying.
Unless expressly authorized in writing by Widen, Fine Uploader Software provided by
Widen under this SSA may not be distributed to any other person or entity, and any such
distribution shall be deemed a copyright infringement as well as a material breach of
this SSA.
Delivery.
Customer may obtain Fine Uploader Software by electronically downloading the Fine
Uploader Software from fineuploader.com or by performing an authorized software
update. All Fine Uploader Software shall be deemed delivered upon download, copying,
or receipt from Widen.
Term and Termination.
The term of this SSA shall commence on the Effective Date and shall continue for a
period of twelve (12) months unless terminated earlier as set forth herein (the “ Term ”).
This SSA shall terminate at the end of the Term except for such
provisions that may be indicated herein as surviving termination of this SSA. Either
Party may terminate this SSA and the License granted hereunder upon written notice for
any material breach of this SSA, including failure to pay undisputed Fees when and as
due. In the event of termination of this SSA for any cause, all rights granted hereunder
automatically revert to the granting Party.
If a Party breaches any of the terms of this SSA and fails to cure such breach within
fifteen (15) days of written notification of such breach (the “ Cure Period ”),
the non-breaching Party giving such notice shall have the right, without prejudice to any other
rights it may have, so long as the breach remains uncured, to terminate this SSA,
effective upon giving written notice to the breaching Party. This SSA may also be
terminated immediately by a Party upon the other Party’s bankruptcy, liquidation,
judicial management, receivership, act of insolvency or change in control.
Fees and Limits.
The fee for Fine Uploader Software and Fine Uploader Support is an annual charge that
includes all Releases and Patches within the Term (“ Fees ”). The Fees and
Limits for Fine Uploader Software and Fine Uploader Support are available at
fineuploader.com/purchase.
Costs and Expenses.
Except as expressly provided in this SSA, each Party shall be responsible for all costs and
expenses incurred by that Party in performing its obligations or exercising its rights under
this SSA.
Payment Terms.
The Fees must be paid in U.S. Dollars. Customer authorizes Widen to bill Customer’s
credit card for the Fees for items specified at www.fineuploader.com. Any and all
payments made by Customer pursuant to this SSA are non-refundable unless otherwise
specified. If Customer fails to fulfill its payment obligations for undisputed Fees as
specified herein, Widen shall have the right to (a) charge Customer for any reasonable
collection costs, including attorneys’ fees; and (b) suspend or cancel performance of all
or part of this SSA.
Taxes.
“ Taxes ” means any form of taxation, levy, duty, customs fee, charge, contribution
or impost of whatever nature and by whatever authority imposed (including without
limitation any fine, penalty, surcharge or interest), excluding any taxes based solely on
the net U.S. income of Widen. Customer shall pay to Widen an amount equal to any
Taxes arising from or relating to this SSA that are paid by or are payable by Widen
including, without limitation, sales, service, use, or value added taxes. If Customer is
required under any applicable law or regulation, domestic or foreign, to withhold or
deduct any portion of the payments due to Widen, then the sum payable to Widen shall
be increased by the amount necessary so that Widen receives an amount equal to the sum
it would have received had Customer made no withholdings or deductions. Customers
with a tax-exempt status shall provide to Widen documentation of such status sufficient
for Widen and Customer to avoid liability for qualifying Taxes.
Limited Warranty and WARRANTY DISCLAIMER for Fine Uploader Software.
ALL FINE UPLOADER SOFTWARE PROVIDED HEREUNDER IS PROVIDED
“AS IS” . Widen expressly warrants that it is the owner or licensor of Fine Uploader
Software, including any and all copyrights and trade secrets, and has the right and
authority to enter into this SSA in accordance with the terms herein. EXCEPT AS MAY
BE PROVIDED IN ANOTHER WRITTEN AGREEMENT BETWEEN WIDEN AND
THE CUSTOMER, THE FOREGOING WARRANTY IS EXCLUSIVE OF ALL
OTHER WARRANTIES , whether written, oral, express or implied, INCLUDING BUT
NOT LIMITED TO the implied warranties of merchantability or fitness for a particular
purpose. WIDEN DOES NOT WARRANT that the Fine Uploader Software will meet
Customer’s requirements, or that the operation thereof will be uninterrupted or error-free.
LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER TERM OF THIS SSA TO THE CONTRARY,
IN NO EVENT SHALL WIDEN (OR ITS EMPLOYEES, AGENTS, SUPPLIERS AND
LICENSORS) BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY CLAIMING
THROUGH CUSTOMER OR END USER FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, CONTINGENT OR PUNITIVE
DAMAGES HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS
OF REVENUE, PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, LOSS OF CAPITAL, INCREASED COSTS OF OPERATION,
LITIGATION COSTS AND THE LIKE), WHETHER BASED UPON A CLAIM OR
ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER
LEGAL OR EQUITABLE THEORY, IN CONNECTION WITH THE USE OR
PERFORMANCE OF THE FILEUPLOADER SOFTWARE PROVIDED BY WIDEN
TO CUSTOMER, REGARDLESS OF WHETHER WIDEN HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE
REASONABLY FORESEEABLE.
IN NO EVENT SHALL WIDEN’S LIABILITY TO CUSTOMER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY
OR PURSUANT TO ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED
THE FEES PAID BY CUSTOMER TO WIDEN PURSUANT TO THIS SSA DURING
THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO WIDEN’S
RECEIPT OF CUSTOMER’S WRITTEN CLAIM. CUSTOMER ACKNOWLEDGES
AND AGREES THAT WIDEN HAS ENTERED INTO THIS SSA IN RELIANCE
UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF
LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION
OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A
CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE
CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS
OF THE BARGAIN BETWEEN THE PARTIES.
This provision shall survive the termination of this SSA.
Trademark Rights and Notices.
Customer recognizes and acknowledges Widen’s ownership and title to the Fine
Uploader trademark, and to Widen’s copyrights, patents, trademarks, trade secrets, and
any other intellectual property and proprietary rights of any kind in any jurisdiction
(collectively the “ Widen Intellectual Property Rights ”) embodied in Fine Uploader
Software or on Widen’s website. Nothing in this SSA shall be interpreted to assign
or to grant exclusive rights to Customer of any of Widen Intellectual Property Rights.
Customer hereby agrees not to use the Fine Uploader trademark or Widen’s trade names
in Customer’s corporate title or name, or for its products or services. Neither Party will
engage in any action associated with the other’s intellectual property rights that adversely
affects the good name or goodwill associated with those intellectual property rights.
Customer agrees not to contest or take any action in opposition to the Fine Uploader
trademark or to attempt to register any mark substantially similar to Fine Uploader
trademark. This provision shall survive the termination of this SSA.
Mutual Confidentiality.
A Party (the “ Discloser ”) may disclose to the other Party (the “ Recipient ”) certain
valuable confidential and proprietary information (“ Confidential Information ”) relating
to the Discloser’s business including without limitation technical data, trade secrets
or unpublished know-how, research and product plans, products and product designs,
inventions, patent applications, copyrighted and unpublished works, financial or other
business information, marketing plans, customer lists, competitive analysis, and tactical
and strategic business objectives. Discloser’s Confidential Information shall be identified
by a prominent mark or accompanying notice that it is “confidential” or “proprietary”,
or shall be identified as Confidential Information in a written notice within thirty (30)
days of its disclosure. Recipient agrees and promises not to disclose said Confidential
Information to any third party who has not also executed a similar confidentiality
agreement with Discloser, unless Discloser intentionally discloses said Confidential
Information to the public or authorizes Recipient to do so in writing as specified in
this SSA. Recipient further agrees to take all reasonable precautions to prevent any
unauthorized disclosure of Discloser’s Confidential Information. Discloser’s Confidential
Information shall no longer be confidential if (a) it is already known to Recipient, as
evidenced by a writing dated prior to the date of disclosure; or (b) it is or becomes
generally known to the public at large through no wrongful act or other involvement
of the Recipient; or (c) it is received from an unaffiliated third party without either an
obligation of nondisclosure or breach of an obligation of confidentiality or nondisclosure;
or (d) it is independently developed by the Recipient or by third parties without any
access whatsoever to the Discloser’s Confidential Information; or (e) it is required to be
disclosed by a court of competent jurisdiction or applicable law, following notice and an
opportunity for Discloser to defend, limit or protect such disclosure. This provision shall
survive the termination of this SSA.
No Agency.
The Parties are independent contractors. Neither Party is an employee, agent, joint
venturer or legal representative of the other Party for any purpose. Neither Party shall
have the authority to enter into any legal or equitable obligation for the other Party.
Under no circumstances may either Party hold itself out to have agency authority for
the other Party. The Parties agree not to make false or misleading statements, claims or
representations about the other Party, its products or the relationship between the Parties.
Notices.
All notices required or permitted under this SSA shall be in writing and shall be deemed
received when confirmed by recipient. In each case, such notice shall be provided to the
email address or other address as the Parties may later designate.
Severability.
If the application of any provision or provisions of this SSA to any particular set of
facts or circumstances is held to be invalid or unenforceable by a court of competent
jurisdiction, the validity of said provision or provisions to any other particular set of facts
or circumstances shall not, in any way, be affected. Such provision or provisions shall
be reformed without further action by the Parties to the extent necessary to make such
provision or provisions enforceable when applied to that set of facts or circumstances.
Amendment and Waiver.
This SSA may not be modified or amended except in a writing signed by a duly
authorized representative of each Party. The waiver by either Party of any of its rights or
remedies hereunder shall not be deemed a waiver of such rights or remedies in the future
unless such waiver is in writing and signed by an authorized officer of such Party. Such a
waiver shall be limited specifically to the extent set forth in said writing.
Assignment.
Neither Party may assign this SSA or any right or obligation hereunder, without the other
Party’s prior written consent, which shall not be unreasonably withheld. However, either
Party may assign this SSA in the event of a merger or consolidation or the purchase of all
or substantially all of its assets. This SSA will be binding upon and inure to the benefit of
the permitted successors and assigns of each Party.
Governing Law and Venue.
The validity, interpretation and enforcement of this SSA shall be governed by and
construed according to the laws of the State of Wisconsin, U.S.A., without reference
to its conflicts of laws doctrine. The Parties irrevocably submit to venue and exclusive
personal jurisdiction in the applicable courts of Dane County, Wisconsin, for any dispute
regarding the subject matter of this SSA including any and all theories of recovery, and
waives all objections to jurisdiction and venue of such courts. Customer and Widen
waive any right to a jury trial regarding any dispute between the Parties. This provision
shall survive the termination of this SSA.
General.
This SSA constitutes the exclusive terms and conditions with respect to the subject
matter hereof. This SSA represents the final, complete and exclusive statement of the
agreement between the Parties with respect to subject matter hereof and all prior written
agreements and all prior and contemporaneous oral agreements with respect to the
subject matter hereof are merged herein. The Parties both state that it is their intention to
resolve disputes between them concerning this SSA directly in good faith negotiations.
Notwithstanding the foregoing, nothing in this section shall prevent either Party from
applying for and obtaining from a court a temporary restraining order and/or other
injunctive relief. This provision shall survive the termination of this SSA.
Maintenance and Support
Engagement of Support Services.
Upon payment by Customer of Fees for Fine Uploader Support as specified at
www.fineuploader.com, Widen shall provide Fine Uploader Support as described in
this SSA to Customer for specified Fine Uploader Software and for the Term identified
herein.
Software Versioning.
Fine Uploader Software is identified by a version number using the following format:
[major release].[minor release].[patch level]. A “ Release ” is a vehicle for delivering
major and minor feature development and enhancements to existing features in Fine
Uploader Software. A “ Patch ” is a vehicle for delivering enhancements to existing
features and to correct defects. New Patches incorporate all applicable defect corrections
made in prior Patches. New Releases incorporate all applicable defect corrections made
in prior Releases and Patches.
Eligibility for Support.
Fine Uploader Software is eligible for Fine Uploader Support for a period of twelve (12)
months from the Effective Date.
Enhancements and Upgrades.
During the Term of Fine Uploader Support, Widen shall provide to Customer, free of
additional charge, all Releases and Patches to the Fine Uploader Software that it makes
generally available. Customer is responsible for installing and testing enhancements and
upgrades.
Exclusions from Support Services.
Widen shall have no obligation to support Fine Uploader Software: (i) that has been
altered or modified without written authorization by Widen; (ii) that is not installed
on supported systems in accordance with Fine Uploader Software documentation; (iii)
that is experiencing problems caused by Customer’s negligence, misuse, or hardware
malfunction; or (iv) that is being used inconsistent with Fine Uploader Software
documentation. Fine Uploader Support does not include information or assistance
on technical issues related to the debugging, installation, administration, and use of
Customer’s computer systems and enabling technologies including, but not limited to,
databases, computer networks, communications, hardware, hard disks, networks, and
printers.
Confidentiality of Customer Data.
Widen will not copy or distribute Customer data while providing Fine Uploader Support.
Limited Warranty for Fine Uploader Support.
Widen warrants that Fine Uploader Support will be performed with the same degree of
skill and professionalism as is demonstrated by like professionals performing services of
a similar nature, and in accordance with generally accepted industry standards, practices,
and principles applicable to such support services.
Customer Responsibilities.
Customer shall provide reasonable cooperation and full information to Widen with
respect to Widen’s furnishing of Fine Uploader Support under this SSA.
General Support.
Customer shall submit issues or questions to the Fine Uploader online community forum
as a single issue or question. Widen will respond to the issue or question via the online
community forum administered by Widen.