LICENSE AGREEMENT
Trillian™ End User License Agreement
THIS IS A LEGAL AGREEMENT between "you," the end user of Trillian™ brand software, and Cerulean Studios, LLC, a Delaware limited liability company ("Cerulean").
Use of the software you are about to download or install indicates your acceptance of these terms. You also agree to accept these terms by so indicating at the appropriate screen, prior to the download or installation process. As used in this Agreement, the capitalized term "Software" means the Trillian™ instant messaging software (either the freeware or commercial versions) together with any and all enhancements, upgrades, and updates that may be provided to you in the future by Cerulean. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU SHOULD SO INDICATE AT THE APPROPRIATE SCREEN AND PROMPTLY DISCONTINUE THE INSTALLATION AND DOWNLOAD PROCESS.
Ownership
The Software and any accompanying documentation are owned by Cerulean and ownership of the Software shall at all times remain with Cerulean. Copies are provided to you only to allow you to exercise your rights under this Agreement. This Agreement does not constitute a sale of the Software or any accompanying documentation, or any portion thereof. Without limiting the generality of the foregoing, you do not receive any rights to any patents, copyrights, trade secrets, trademarks or other intellectual property rights relating to or in the Software or any accompanying documentation. All rights not expressly granted to you under this Agreement are reserved by Cerulean.
Grant of License Applicable To Trillian™ Basic
Subject to the terms and conditions set out in this Agreement, Cerulean grants you a limited, nonexclusive, nonsublicensable, and revocable right to use the freeware version of the Software called Trillian™ Basic ("Trillian™ Basic") solely in accordance with the following terms and conditions:
1. Use of Trillian™ Basic. Trillian™ Basic is being distributed as Freeware. It may be freely used, copied and distributed as long as it is not sold and all original files are included, including this license and Cerulean.s copyright notice. You may use Trillian™ Basic on as many computers as you require.
2. Distribution Permitted. You may make copies of your copy of Trillian™ Basic to give to others provided that such copies are not modified from the original downloaded copy of Trillian™ Basic. You may not charge a fee for distributing copies of Trillian™ Basic except that freeware distribution companies may charge their normal shipping and handling fees not to exceed $5.00 U.S. per copy. If a copy of Trillian™ Basic is distributed, Cerulean requests that you send Cerulean an e-mail addressed to info@ceruleanstudios.com notifying Cerulean of such distribution and the identity of the person or entity receiving the copy of Trillian™ Basic.
3. Termination. Cerulean may terminate your license in Trillian™ Basic at any time, for any reason or no reason. Cerulean may also terminate your license in Trillian™ Basic if you breach any of the terms and conditions set forth in this Agreement. Upon termination, you shall immediately destroy all copies of Trillian™ Basic in your possession, custody or control.
4. Fees. There is no license fee for Trillian™ Basic. If you wish to receive the commercial version of Trillian™, Trillian™ Pro, you will be required to pay the applicable license fee.
Grant of License Applicable To Trillian™ Pro
Subject to the terms and conditions set out in this Agreement, Cerulean grants you a limited, nonexclusive, nontransferable and nonsublicensable right to use the commercial version of the Software called Trillian™ Pro ("Trillian™ Pro") solely in accordance with the following terms and conditions:
1. Use of Trillian™ Pro. You may download and use Trillian™ Pro on multiple computers owned, leased or rented by you; however, you are the only individual with the right to use your licensed copy(ies) of Trillian™ Pro. All copies of Trillian™ Pro must include Cerulean.s copyright notice.
2. Distribution Prohibited. You may not distribute copies of Trillian™ Pro for use by any individual other than you. Distribution of Trillian™ Pro by you to third parties is hereby expressly prohibited.
3. Fees. A license to Trillian™ Pro costs $25.00 entitling you to unlimited use of the version of Trillian™ Pro you purchased along with one year (i.e., 365 days) of support and upgrades as set forth below.
4. Support. Cerulean will provide you with support services related to Trillian™ Pro ("Support Services") for a period that begins on the purchase date and ends 365 days later. The nature, scope and extent of Support Services shall be as set forth in Cerulean.s policies and programs described in any user manuals, in "online" documentation, and/or other Cerulean provided materials and are subject to change in Cerulean.s sole discretion.
5. Upgrades. Cerulean will provide you with free upgrades for a period that begins on the purchase date and ends 365 days later. Such upgrades will include any upgrades for Trillian™ Pro that are released by Cerulean for general distribution to Trillian™ Pro licensees during the one year period for which you are entitled to receive free upgrades. Cerulean has no obligation to provide you with any upgrades that are not released for general distribution to Cerulean.s other licensees. Nothing in this Agreement shall be construed to obligate Cerulean to provide upgrades to you under any circumstances.
Prohibited Conduct
You represent and warrant that you will not violate any of the terms and conditions set forth in this Agreement and that:
You will not, and will not permit others to: (i) reverse engineer, decompile, disassemble, derive the source code of, modify, or create derivative works from the Software; or (ii) use, copy, modify, alter, or transfer, electronically or otherwise, the Software or any of the accompanying documentation except as expressly permitted in this Agreement; or (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software whether in a stand-alone configuration or as incorporated with other software code written by any party except as expressly permitted in this Agreement.
You will not use the Software to engage in or allow others to engage in any illegal activity.
You will not engage in use of the Software that will interfere with or damage the operation of the services of third parties by overburdening/disabling network resources through automated queries, excessive usage or similar conduct.
You will not use the Software to engage in any activity that will violate the rights of third parties, including, without limitation, through the use, public display, public performance, reproduction, distribution, or modification of communications or materials that infringe copyrights, trademarks, publicity rights, privacy rights, other proprietary rights, or rights against defamation of third parties.
You will not transfer the Software or utilize the Software in combination with third party software authored by you or others to create an integrated software program which you transfer to unrelated third parties.
Upgrades, Updates And Enhancements
All upgrades, updates or enhancements of the Software shall be deemed to be part of the Software and will be subject to this Agreement.
Disclaimer of Warranty
THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES THAT IT IS FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE AND AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CERULEAN BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, CERULEAN.S COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS LICENSE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES (IF ANY) YOU PAID FOR THIS LICENSE.
Export Control
The Software may contain encryption and is subject to United States export control laws and regulations and may be subject to export or import regulations in other countries, including controls on encryption products. You agree that you will not export, re-export or transfer the Software in violation of any applicable laws or regulations of the United States or the country where you legally obtained it. You are responsible for obtaining any licenses to export, re-export, transfer or import the Software.
In addition to the above, the Software may not be used by, or exported or re-exported to: (i) any U.S. or EU sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) to any person, entity or organization or other party identified on the U.S. Department of Commerce.s Table of Denial Orders or the U.S. Department of Treasury.s lists of "Specially Designated Nationals and Blocked Persons," as published and revised from time to time; (iii) to any party engaged in nuclear, chemical/biological weapons or missile proliferation activities, unless authorized by U.S. and local (as required) law or regulations.
U.S. Government Legends
The Software is commercial in nature and developed solely at private expense. The Software is delivered as "Commercial Computer Software" as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided in this Agreement.
Legends and Notices
You agree that you will not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or any accompanying documentation.
Term and Termination
This Agreement is effective upon your acceptance as provided herein and payment of the applicable license fees (if any), and will remain in force until terminated. You may terminate the licenses granted in this Agreement at any time by destroying the Software and any accompanying documentation, together with any and all copies thereof. The licenses granted in this Agreement will terminate automatically if you breach any of its terms or conditions or any of the terms or conditions of any other agreement between you and Cerulean. Upon termination, you shall immediately destroy the original and all copies of the Software and any accompanying documentation, or return them to Cerulean.
Software Suggestions
Cerulean welcomes suggestions for enhancing the Software and any accompanying documentation that may result in computer programs, reports, presentations, documents, ideas or inventions relating or useful to Cerulean.s business. You acknowledge that all title, ownership rights, and intellectual property rights concerning such suggestions shall become the exclusive property of Cerulean and may be used for its business purposes in its sole discretion without any payment or accounting to you.
Miscellaneous
This Agreement constitutes the entire agreement between the parties concerning the Software, and may be amended only by a writing signed by both parties. This Agreement shall be governed by the laws of the State of New York, excluding its conflict of law provisions. All disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of New York and you expressly consent to the exercise of personal jurisdiction in the courts of New York in connection with any such dispute. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
|
