End User License Agreement
This End User License Agreement (the “Agreement”) constitutes a legally binding agreement by and between BucketSoft, LLC (hereinafter, “BucketSoft”) and you (“you” or “your”) concerning your license, purchase, download and use of Silverlight Modules (“Modules”) made available through the www.silverlightxap.com website. BY PURCHASING, DOWNLOADING OR USING A MODULE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THIS AGREEMENT. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT, DO NOT PURCHASE, DOWNLOAD OR USE A MODULE.
As used in this Agreement:
- “Modules” shall further mean any reusable creative work built in Silverlight or XAML, and may include both controls and illustrations.
2. LICENSE AND RESTRICTIONS ON USE
(a) LICENSE GRANT. BUCKETSOFT GRANTS YOU A REVOCABLE, NON-EXCLUSIVE, NON- TRANSFERABLE, ROYALTY FREE, LIMITED RIGHT TO DOWNLOAD AND USE MODULES IN CONNECTION WITH SILVERLIGHT PROJECTS DEVELOPED, OWNED AND CONTROLLED BY YOU, STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
(b) Restrictions on Use. You shall use Modules strictly in accordance with the terms of this Agreement and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt Modules; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from Modules; (c) violate any applicable laws, rules or regulations in connection with your use of Modules; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of BucketSoft or its affiliates, partners, suppliers or the licensors of Modules; (e) use Modules for any purpose for which it is not designed or intended; (f) use Modules for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by BucketSoft; or (g) use any proprietary information or interfaces of BucketSoft or other intellectual property of BucketSoft in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with Modules.
3. INTELLECTUAL PROPERTY RIGHTS
(a) Rights to Modules. You acknowledge and agree that Modules and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of BucketSoft or its affiliates, partners, suppliers or the licensors of Modules. Furthermore, you acknowledge and agree that the source and object code of Modules and the format, directories, queries, algorithms, structure and organization of Modules are the intellectual property and proprietary and confidential information of BucketSoft and its or its affiliates, partners, suppliers or the licensors of Modules. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to Modules by implication, estoppel or other legal theory, and all rights in and to Modules not expressly granted in this Agreement are hereby reserved and retained by BucketSoft or its affiliates, partners, suppliers or the licensors of Modules.
4. RESTRICTION ON TRANSFER
YOU MAY NOT RENT, LEASE, LEND, SUBLICENSE OR TRANSFER MODULES, THIS AGREEMENT OR ANY OF THE RIGHTS GRANTED HEREUNDER. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THIS PROVISION SHALL BE NULL AND VOID AND OF NO FORCE OR EFFECT.
5. THIRD-PARTY MODULES
(a) Disclaimer. You acknowledge that BucketSoft does not investigate, monitor, represent or endorse Modules created and provided by Buckesoft’s affiliates, partners, suppliers or the licensors. Furthermore, your access to and use of the third-party Modules is at your sole discretion and risk, and BucketSoft and its affiliates, partners, suppliers and licensors shall have no liability to you arising out of or in connection with your access to and use of the third-party Modules. BucketSoft hereby disclaims any representation, warranty or guaranty regarding the third-party Modules, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the third-party Modules.
(b) Endorsements. You acknowledge and agree that the provision of access to any third-party Modules shall not constitute or imply any endorsement by BucketSoft of such third-party Modules. BucketSoft reserves the right to restrict or deny access to any third-party Modules otherwise accessible through the BucketSoft website, although BucketSoft has no obligation to restrict or deny access even if requested by you.
6. TERM AND TERMINATION; SURVIVAL
(a) Term. This Agreement shall be effective until terminated.
(b) Termination. BucketSoft may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement and the rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights afforded to you hereunder shall terminate automatically, without any notice or other action by BucketSoft.
(c) Survival. The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination: 2, 3(b), 4, 5, 6, 8, 9, 10, 1, 13 and 14.
7. DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT MODULES ARE PROVIDED ON AN “AS IS’ AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON MODULES IS AT YOUR SOLE RISK AND DISCRETION. BUCKETSOFT AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING MODULES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, BUCKETSOFT AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT: (I) MODULES WILL MEET YOUR REQUIREMENTS; (II) MODULES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF MODULES WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN MODULES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BUCKETSOFT SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT BUCKETSOFT HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN MODULES.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL BUCKETSOFT OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE MODULES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BUCKETSOFT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUCKETSOFT’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AGGREGATE PRICE YOU PAID TO BUCKETSOFT DURING THE SIX MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH LIABILITY OR THE AMOUNT OF FIFTY DOLLARS ($50.00), WHICHEVER IS LESS. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN BUCKETSOFT AND YOU. THE APPLICATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You shall indemnify, defend and hold harmless BucketSoft and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your purchase, download, or use of Modules; (ii) your breach of this Agreement; (iii) your violation of law; (iv) your negligence or willful misconduct; or (v) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the Agreement.
BucketSoft does not warrant that Modules will be compatible or interoperable with your Silverlight Project or any other piece of hardware, software, equipment or device used in connection with your Silverlight Project. Furthermore, you acknowledge that compatibility and interoperability problems can cause the performance of your Silverlight Project to diminish or fail completely, and may result in permanent damage to your Silverlight Project, loss of the data located in your Silverlight Project, and corruption of the software and files located in your Silverlight Project. You acknowledge and agree that BucketSoft and its affiliates, partners, suppliers and licensors shall have no liability to you for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
11. GOVERNING LAW; JURISDICTION AND VENUE
The Application and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Texas and shall be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE APPLICATION OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
(a) Requirement of Arbitration. You agree that any dispute, of any nature whatsoever, between you and BucketSoft arising out of or relating to Modules or this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in Dallas, TX (unless you and BucketSoft mutually agree to a different arbitrator), who shall render an award in accordance with the substantive laws of Texas and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fee and reasonable attorney’s fees) to the prevailing party.
(b) Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude you or BucketSoft from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or BucketSoft from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN COLLIN COUNTY, TEXAS; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
(a) Severability. If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
(b) Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
(c) Export Module. You may not use or otherwise export or re-export Modules except as authorized by United States law and the laws of the jurisdiction(s) in which Modules was obtained. you represent and warrant that you are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (ii) listed on any U.S. U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that you will not use Modules for any purposes prohibited by United States law.
(d) Modification or Amendment. BucketSoft may modify or amend the terms of this Agreement by posting a copy of the modified or amended Agreement on the BucketSoft website, at: http://www.silverlightxap.com/. You will be deemed to have agreed to any such modification or amendment by your decision to continue using Modules following the date in which the modified or amended Agreement is posted on the BucketSoft website.
(e) Third Party Beneficiaries. Except as provided in this Section 13(e), nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person. You and BucketSoft acknowledge and agree that Apple and its affiliates, partners, suppliers or the licensors of Modules are third party beneficiaries to this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, such parties will have the right to enforce this Agreement against you in its capacity as a third party beneficiary to the Agreement.
(f) Assignment. You shall not assign this Agreement or any rights or obligations herein without the prior written consent of BucketSoft and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
(g) Entire Agreement. This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of Modules licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
(h) Headings. The headings contained in this Agreement are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Agreement or any of its provisions.