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Terms and Conditions for using Inkblot Publisher:
1.1 "Agreement" means this End User License Agreement, including any and all attached Schedules.
1.2 "Derivative Work" means: (a) any modification of or revisions or improvements to the Sinapps Software by whomever created, including, without limitation, any computer program, addition, enhancement, modification, new version, adaptation or interface element, in any form or medium whatsoever, that is derived in any manner from the Sinapps Software, or any part or aspect thereof; and (b) any "derivative work" of the Sinapps Software, or any part or aspect thereof, as defined in the Copyright Law of the United States of America, 17 U.S.C. 101 et. seq.
1.3 "Effective Date" means the effective date of a license to use Sinapps Software granted hereunder, as specified on the applicable Schedule.
1.4 "License Term" has the meaning specified in Section 2.1 below.
1.5 "Maintenance Support" means the standard maintenance telephone and e-mail support during regular business hours offered by Sinapps to its customers, as described and updated from time to time by Sinapps.
1.6 "Proprietary Information" has the meaning specified in Section 10. 1 below.
1.7 "Schedule" means one or more schedules hereto, signed by the Parties and expressly referencing this Agreement, which sets forth the specific Sinapps Software, license, and/or subscription fees, License Term and other terms agreed to by the Parties.
1.8 "Sinapps Software" means (i) the software products designated on the Schedule hereto provided to Customer by Sinapps in executable form (but not the Source Code), (ii) the associated program documentation ("Documentation"), (iii) any source code or object code which Sinapps in its sole discretion may provide to Licensee from time to time and (iv) subsequent updates, modifications, maintenance releases, bug fixes or work-arounds, if any, which Sinapps may provide to Customer from time to time hereunder.
1.9 "Third Party Licensor(s)" has the meaning specified in Section 8.1 below.
2 Grant of License
2.1 For so long as is set out in the applicable Schedule (the "License Term"), unless this Agreement and/or such Schedule is otherwise terminated, and subject to the requirements of Section 5, Sinapps grants to Customer a non-exclusive, non-transferable, non-sublicensable (unless with prior written consent of Sinapps), limited license to develop, update and maintain a single website with a single domain name solely for Customer's own business marketing purposes, the Sinapps Software identified in such Schedule in accordance with the Documentation. Customer acknowledges and agrees that each Sinapps Software licensed to Customer will be deployed and installed by Sinapps on its or its suppliers' website hosting or other servers to permit Customer to develop one (1) website for Customer's business. Customer acknowledges and agrees that it shall use one (1) copy of each Sinapps Software to develop only one (1) website for one domain name and may acquire additional licenses of the Sinapps Software to develop additional websites by paying the applicable license fees, which shall be set forth in the applicable Schedule. Customer shall only use the Sinapps Software and the tools therein to update and maintain the content of such website. Sinapps and its Third Party Licensors, as applicable, will at all times retain ownership of all Sinapps Software and any copies thereof.
2.2 Sinapps will, as soon as practicable following the Effective Date, deploy the Sinapps Software licensed to Customer to permit Customer to create its website and deliver to Customer the number of password(s) or user ID(s) necessary to enable Customer to access and use the Sinapps Software and to provide, maintain and update the content for the website for which it has paid license fees.
2.3 Sinapps grants and Customer receives no other rights or licenses to the Sinapps Software, Derivative Works thereof or any intellectual property rights related thereto, whether by implication, estoppel or otherwise, except those rights expressly granted in this Section 2.
3 License Restrictions
Unless otherwise expressly authorized herein or in the applicable Schedule, Customer agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, sublicense (unless with Sinapps' prior written consent), encumber or otherwise deal with any portion of the Sinapps Software or Documentation; (b) reproduce, decompile, disassemble, or reverse engineer any portion of the Sinapps Software or attempt to discover any source code or underlying ideas or algorithms of any Sinapps Software, except that Customer may utilize the tools and templates offered in the Sinapps Software to make modifications to the content of the website; (c) create any Derivative Work based on the Sinapps Software or any Sinapps Proprietary Information; (d) use the Sinapps Software to provide website design, development or maintenance services, or otherwise use or allow others to use the Sinapps Software for the benefit of any third party; (e) provide, disclose, divulge or make available to, or permit use of the Sinapps Software by persons other than Customer's employees, who shall have been notified of the terms and conditions herein and Customer's and such employee's obligations to be bound hereby, without Sinapps' prior written consent; or (f) use any Sinapps Software, or allow the transfer, transmission, export, or re-export of any Sinapps Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency. All the limitations and restrictions on the Sinapps Software in this Agreement also apply to the Documentation.
4 Manner of Payment
The fees due hereunder shall be as set forth on the applicable Schedule hereto and will be made inside the U.S., in U.S. dollars within thirty (30) days of receipt of invoice and are exclusive of any sales, use or other taxes, fees or duties arising out of this Agreement. In addition to any remedies Sinapps may have hereunder or at law, any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law.
5 Maintenance and Other Services
Maintenance Support will be provided for Sinapps Software at the current hourly rate during Sinapps' regular business hours.
6 Warranty and Limitation of Liability for Sinapps Software
6.1 Sinapps warrants to Customer that the Sinapps Software will perform in substantial accordance with the Documentation for so long as the Hosting Services provided in Section 5 above. This warranty covers only problems reported to Sinapps during the warranty period and covers functionality and performance on website browsers that are available and widely used as of the Effective Date. ANY LIABILITY OF SINAPPS OR ITS THIRD PARTY LICENSORS WITH RESPECT TO THE SINAPPS SOFTWARE OR THE PERFORMANCE THEREOF, INCLUDING THE PERFORMANCE OF THE WEBSITE CREATED BY SUCH SINAPPS SOFTWARE, UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OR, IF REPLACEMENT IF INADEQUATE AS A REMEDY OR, IN SINAPPS' OPINION, IMPRACTICAL, TO REFUND OF THE APPLICABLE LICENSE FEE.
6.2 The foregoing Warranty will not apply to the extent that the Sinapps Software is used or interfaced with other software, data or operating systems which are not functioning properly or if the Sinapps Software has been modified in a manner not authorized by Sinapps. Additionally, the foregoing Warranty will apply only to website browsers that are available and widely used as of the Effective Date. THE FOREGOING ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. The warranty set forth above is made to and for the benefit of Customer only and will be enforceable only if: (a) The Sinapps Software has been properly installed and has been used at all times in accordance with the Documentation and this Agreement; (b) all modifications, alterations or additions to the Sinapps Software (other than the website), if any, have been made by Sinapps; and (c) Customer has not made or caused to be made modifications, alterations or additions to the Sinapps Software (other than the website) that cause it to deviate from the Documentation.
6.3 EXCEPT AS SET FORTH ABOVE, NEITHER SINAPPS NOR ITS THIRD PARTY LICENSORS MAKES ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SINAPPS SOFTWARE, THE WEBSITE, THE MAINTENANCE SUPPORT OR THE DOCUMENTATION PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. SPECIFICALLY, SINAPPS AND ITS THIRD PARTY LICENSORS DO NOT WARRANT THAT THE SINAPPS SOFTWARE, MAINTENANCE SUPPORT OR WEBSITE WILL BE ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED MANNER. TO THE MAXIMUM EXTENT ALLOWED BY LAW, SINAPPS AND ITS THIRD PARTY LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF SINAPPS HAS BEEN INFORMED OF SUCH PURPOSE) WITH RESPECT TO THE SINAPPS SOFTWARE, THE WEBSITE, DOCUMENTATION AND MAINTENANCE SUPPORT AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
6.4 IN NO EVENT WILL SINAPPS, ITS THIRD PARTY LICENSORS OR ITS SUBCONTRACTORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SINAPPS SOFTWARE, WEBSITE OR MAINTENANCE SUPPORT PERFORMED HEREUNDER OR ANY DELAY IN DELIVERY OR FURNISHING THE SINAPPS SOFTWARE, WEBSITE OR SAID SERVICES WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SINAPPS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6.5 Sinapps' and any Third Party Licensors' maximum aggregate liability (whether in contract, tort or any other form of liability) for damages or loss, howsoever arising or caused, whether or not arising from Sinapps' negligence, will in no event be greater than the license fee specified in the relevant Schedule related to the particular Sinapps Software which caused the damage or loss.
6.6 No employee, agent, representative or affiliate of Sinapps has authority to bind Sinapps or its Third Party Licensors to any oral representations or warranty concerning the Sinapps Software. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
7 Assignment/Binding Agreement
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Sinapps. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Notwithstanding the foregoing, no transfer or assignment of Customer's rights hereunder will be effective unless and until (1) Customer has paid and remains current on all amounts due hereunder; and (2) the purported assignee agrees in writing to be bound by all of the obligations of Customer hereunder.
8.1 The Sinapps Software and all intellectual property rights related thereto, and any business, operational or technical information provided to Customer by Sinapps hereunder (the "Proprietary Information") constitute trade secrets and proprietary data of Sinapps and any third party from whom Sinapps has received marketing rights (the "Third Party Licensors") and nothing in this Agreement will be construed to convey any title or ownership rights to Customer. Customer will use commercially reasonable efforts to safeguard the confidentiality of Sinapps' Proprietary Information and any other information marked as confidential by Sinapps, including those taken by Customer to protect Customer's own confidential information. Customer will not disclose, in whole or in part, any item of the Sinapps Software, Proprietary Information or any other information marked as confidential to any individual, entity or other person, except as set forth herein or to those Customer consultants who (a) require access for Customer's authorized use of the Proprietary Information; (b) agree in writing to comply with the use and non-disclosure provisions no less restrictive than those set forth in this Agreement; and (c) are not competitors of Sinapps. If any unauthorized use or disclosure occurs, Customer will immediately notify Sinapps and assist Sinapps in recovering the Proprietary Information and preventing its subsequent unauthorized use or dissemination.
8.2 Sinapps agrees to maintain the confidentiality of the business, operational, and financial materials and data provided by Customer to Sinapps hereunder, provided such information is marked or otherwise identified in writing by Customer as confidential or proprietary (also referred to as "Proprietary Information"). Sinapps will use commercially reasonable efforts to confine knowledge of such Customer Proprietary Information to only its employees and third party consultants who require such knowledge and use in the ordinary course and scope of their employment and/or business with Sinapps.
8.3 The Parties acknowledge that in the event either Party fails to fulfill its obligations under Section 3 or this Section 8, the non-breaching Party (including the Third Party Licensors) will have the right to take all reasonable steps to protect its proprietary interests, including, but not limited to, seeking injunctive relief and any other remedies as may be available at law or in equity.
8.4 Either Party's obligations to maintain the confidentiality of the other Party's Proprietary Information will not apply where the Proprietary Information (a) was placed in the public domain by the owner of such information prior to the disclosure; (b) was independently developed by the other Party without knowledge of the Proprietary Information; (c) becomes available without breach of this Agreement; (d) is rightfully received by the other Party from a third party without an obligation of confidentiality; or (e) is demanded by a lawful order from any court or any body empowered to issue such an order. Each Party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order.
Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person; (b) sent by registered mail, return receipt requested; (c) sent by overnight air courier; (d) by facsimile, or (e) sent by electronic mail with return receipt requested, in each case forwarded to the appropriate individual at the address set forth below. Either Party may change its address for notice by written notice to the other Party. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after posting, or one days after (i) delivery to an overnight air courier service; (ii) the moment of transmission by facsimile; or (iii) the return of the receipt from electronic mail transmission.
10.1 Force Majeure. Neither Party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by event, occurrences, or causes beyond its control and without negligence of the Parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions, but the ability to meet financial obligations is expressly excluded.
10.2 Waiver. Any waiver of the provisions of this Agreement or of a Party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed to be deemed a waiver of such Party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party's right to take subsequent action.
10.3 Severability. If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
10.4 Entire Agreement. This Agreement (including the Schedules and any addenda hereto signed by both Parties) contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to said subject matter.
10.5 Standard Terms of Customer. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Sinapps Software will have any effect on the rights, duties or obligations of the Parties under, or other otherwise modify, this Agreement, regardless of any failure of Sinapps to object to such terms, provisions, or conditions.
10.6 Public Announcements/Publicity. Customer and Sinapps agree to cooperate regarding public relations activities, including public announcements, joint press releases, and other activities to be mutually agreed. Neither Party will perform such activities without the prior written consent of the other Party, which consent will not be unreasonably withheld.
10.7 Headings. Headings herein are for convenience of reference only and will in no way affect the interpretation of the Agreement.
10.8 Applicable Law. This Agreement will be interpreted and construed in pursuant to the laws of the State of Texas and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any legal action or proceeding relating to this Agreement will be instituted in a state or federal court in Houston, Texas. Sinapps and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such action or proceeding. Any waivers or amendments will be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing Party in any action to enforce this Agreement will be entitled to recover its attorney's fees and costs in connection with such action. Customer represents that it is not a government agency and it is not acquiring the license pursuant to a government contract or with government funds.
10.9 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same Agreement.