Some Techie Media Player License Agreement
Version 1, March 28, 2013
IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE (sometechie.com). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee”, "You", or "Your'), AND SOME TECHIE, LLC (“Some Techie”). BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY SOME TECHIE THROUGH THIS WEB SITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.
1. Software License
Subject to the terms of this Agreement, Some Techie hereby grants to You the following limited, non–exclusive, non–transferable licenses (the "License" or “Licenses”) to use the Some Techie computer software identified as the Some Techie Media Player and any updates, upgrades, modifications and error corrections thereto provided to You by Some Techie (the “Programs”) and any accompanying documentation (the “Documentation” and, together with the Programs, the “Software”) as set forth below. You agree to be bound by Some Techie’s Terms and Conditions that are incorporated herein by reference, and located on our web site at http://www.sometechie.com/legal/terms-and-conditions.html.
This License shall apply only to the Some Techie Media Player versions numbered 1.0 through 1.99. This License does not cover any other products or previous versions of the Software, all of which are subject to other license agreements.
For purposes of this License:
“Website” means a website which You own, control, or develop.
1.1 Paid Subscriptions
1.1.1 Ultimate Subscription
The License granted hereunder shall be solely for Licensee’s own use. If You purchase a Media Player - Ultimate subscription, the Software received under that subscription may be included on any number of Your Websites.
1.1.2 Pro Subscription
The License granted hereunder shall be solely for Licensee’s own use. If You purchase a Media Player - Pro subscription, the Software received under that subscription may be included on one (1) of Your Websites. If You have purchased a Media Player - Pro x10 subscription, the Software You received under that subscription may be included on no more than ten (10) of Your Websites. One or more Websites which share a single domain name, not including the top level domain, are considered a single Website for the purposes of this License. Use in excess of these limits is strictly prohibited and shall be grounds for immediate termination of this License.
For the duration of Your active, paid subscription to either Media Player - Pro, Media Player - Pro x10, or Media Player - Ultimate (collectively, “Paid Subscription”), You will be eligible to receive each major update and minor update (“Update”) for the version of the Software that You License hereunder until Your subscription expires. An Update replaces and/or supplements (and may disable) the version of the Software that formed the basis for Your eligibility for the Update. The total number of Websites on which the Software or any Update is used must not exceed the number of Websites covered by Your Paid Subscription that is active at the time You receive the Update of the Software. You may use the resulting updated Software only in accordance with the terms of this License. Some Techie reserves the right to employ technical moeans to enforce the restrictions of this License.
Subject to the terms of this Agreement, You are granted a limited, non-exclusive, non-transferrable License to redistribute the Software, unmodified, solely to support the operation of Your Website, provided You retain the copyright and License message in all copies of the Software.
Under no circumstances may any portion of the Software’s source code or any modified version of the Software be distributed, disclosed or otherwise made available to any third party. This License explicitly forbids any attempt to remove or otherwise hide any Some Techie brand, watermark, or other visible representation of Some Techie from the Software acquired without a Paid Subscription.
For the duration of Your active, paid subscription You are entitled to “Premium Support” as described in greater detail here: http://www.sometechie.com/media-player/support.html subject to the limitations and restrictions described in the following Fair Usage Policy.
2.1 Support Fair Usage Policy
Some Techie may limit or terminate Your access to any or all of the Premium Support services available if Your use of the support services is determined by Some Techie, in its sole and reasonable discretion, to be excessive.
2.2 No Support to End Users
In no event will Some Techie provide support of any kind to end-users of Your Websites.
Some Techie shall make a copy of the Software available for download by Licensee in electronic form only. Any network access fees are the responsibility of the Licensee.
4. No Improper Use
Your use may not be obscene or pornographic, and may not be disparaging, defamatory, or libelous to Some Techie, any of its products, or any other person or entity.
Your use may not directly or indirectly imply Some Techie’s sponsorship, affiliation, or endorsement of Your product or service.
You may not present false or misleading information about Some Techie products or services.
You may not link to SomeTechie.com from a website that is obscene or pornographic, or disparaging, defamatory, or libelous to Some Techie or any of its products.
Some Techie reserves the right to terminate Your right to use the Software if Some Techie in its sole discretion deems Your use of the Software to be improper.
5. Term and Termination
This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. Unless otherwise prohibited by law, and without prejudice to Some Techie’s other rights or remedies, Some Techie shall have the right to terminate this Agreement and the License granted hereunder immediately if You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Some Techie. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use and distribution of the Software. You must also remove all copies of the software from all of Your Websites and destroy any copies of the Software that You have obtained.
6. Product Discontinuance
Some Techie reserves the right to discontinue the Software or any component of the Software, whether offered as a standalone product or solely as a component, at any time. However, for a period of one (1) year after the date of discontinuance, Some Techie intends to provide support for discontinued Software or components in accordance with the terms set forth in this Agreement.
The section headings in these Terms are for the purpose of convenience only, and are not intended to and in no way define, describe, limit, expand, or construe the scope of any provision or its applicability.
8. Intellectual Property
All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Some Techie that are used in connection with the Software are and shall at all times remain exclusively owned by Some Techie and its licensors. All title and intellectual property rights in and to the content that may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content.
You agree not to decompile, reverse engineer or otherwise seek to discover the un-minified source code of the Software.
9. Limited Warranty
Some Techie warrants solely to You that the Software will perform substantially in accordance with any accompanying Documentation for a period of ninety (90) days after the date on which You purchase the License for the Software. Some Techie does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Your failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than Some Techie. In the event of a breach of warranty, Your sole and exclusive remedy and Some Techie’s sole and exclusive obligation, is repair of all or any portion of the Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and Some Techie’s maximum liability shall be a refund of the purchase price for Your most recent Paid Subscription which provided the defective Software. This limited warranty is only valid if Some Techie receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, SOME TECHIE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOME TECHIE 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 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, SOME TECHIE’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE MAXIMUM COST OF ANY SINGLE PAID SUBSCRIPTION OR UPDATE PURCHASED BY THE LICENSE FOR THE SOFTWARE GIVING RISE TO SUCH DAMAGES OR FIVE US DOLLARS, WHICHEVER IS GREATER, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. SOME TECHIE IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED IN THE SOFTWARE UPON SHIPMENT FROM SOME TECHIE IS FOR TESTING USE ONLY AND SOME TECHIE HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
You agree to indemnify, hold harmless, and defend Some Techie and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from (i) Your use of the Software in violation of this Agreement, (ii) the use of the Software on Your Website, or (iii) Your modification of the Software.
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Each party’s obligations under this Section 12 shall apply at all times during the term of this Agreement and for two (2) years following termination of this Agreement.
13. Governing Law
This License will be governed by the law of the State of Georgia, U.S.A., without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by such good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Gwinnett County, Georgia, U.S.A., and the parties hereby agree to submit to the jurisdiction and venue of such court. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods applies to this agreement. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
14. Entire Agreement
This Agreement sets forth our entire agreement with respect to the Software and supersedes any prior or contemporaneous communications regarding the Software. You agree that You are not relying on any representation or obligation other than those set forth in this Agreement. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties.
15. No Assignment
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Some Techie’s prior written consent.
Sections 2.1, 2.2, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 shall survive the expiration or termination of this Agreement.
If any provision of this Agreement is held by any court of competent jurisdiction to be invalid or otherwise unenforceable, the rest of this Agreement shall, nevertheless, continue to be valid and in full force and effect, to the extent said remaining terms are then otherwise consistent with the original intent of the Agreement.
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this Agreement and all related documents be written in English.
18. Force Majeure
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE OR ANY PORTION THEREOF ONTO YOUR WEBSITE OR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN SOME TECHIE AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.