IMPORTANT-READ CAREFULLY: YOUR USE OF THE DREAMFACTORY SOFTWARE IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS. BY UTILIZING THE DREAMFACTORY SOFTWARE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This is a legal agreement ("Agreement") between You and DreamFactory Software, Inc. ("DreamFactory"), for use of the DreamFactory software, including the DreamFactory Silver Package and Gold Package (the "Software"). "You" refers to the individual who registered and/or provided DreamFactory his or her credit card or other payment mechanism for the Software or, if the Software are being purchased on behalf of an entity by an individual authorized to purchase the Software on behalf of such entity, then "You" refers to such entity. If You do not agree with the terms of this Agreement, do not use or download the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
1. SOFTWARE LICENSE.
DreamFactory grants You a non-exclusive, non-transferable right and license to use the Software in accordance with this Agreement. One license grants the right to use the Software on one URL domain. Each additional URL domain using the Software requires an additional purchased license. DreamFactory may at its sole discretion modify the features of the Software from time to time without prior notice.
Other than using the Software for Yourself and Your Company, and as permitted under the terms and conditions of this Agreement or other written agreements between You and DreamFactory, You may not:
- Reproduce, distribute, or transfer the Software, or portions thereof, to any third party;
- Sell, rent, lease, assign, or sublet the Software or portions thereof;
- Grant rights to any other person; or
- Use the Software in violation of any U.S. or international law or regulation.
You agree that DreamFactory may charge to Your credit card or other payment mechanism selected by You and approved by DreamFactory ("Your Account") all amounts due and owing for the Software, including subscription fees or any other fee or charge associated with Your use of the Software. DreamFactory may change prices at any time without prior notice. You agree that in the event DreamFactory is unable to collect the fees owed to DreamFactory for the Software through Your Account, DreamFactory may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by DreamFactory in connection with such collection activity, including collection fees, court costs and attorneys' fees. You further agree that DreamFactory may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. PROPRIETARY RIGHTS.
DreamFactory or its licensors own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software. DreamFactory shall retain ownership of any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software. Customer acknowledges that the licenses granted under this Agreement do not provide Customer with title to or ownership of the Software, but only a right to use under the terms and conditions of this Agreement. Customer shall not use the Software in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Software.
You may terminate this Agreement by providing written notice to DreamFactory via e-mail to [email protected] Such termination will be effective on the later of: (a) the last day of the term (if your Agreement has a fixed term), or (b) thirty (30) days after DreamFactory's receipt of your written termination notice. If You fail to comply with any provision of this Agreement, DreamFactory may terminate this Agreement immediately without notice. Sections 2 through 10, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Software and destroy any copies of associated software within Your possession and control.
6. EXPORT RESTRICTIONS.
You acknowledge that the Software, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
7. INJUNCTIVE RELIEF.
You acknowledge that any use of the Software contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Software, may cause irreparable injury to DreamFactory, its affiliates, suppliers and any other party authorized by DreamFactory to resell, distribute, or promote the Software ("Resellers"), and under such circumstances DreamFactory, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
8. NO WARRANTIES.
YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS PROVIDED "AS IS" AND DREAMFACTORY, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DREAMFACTORY, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SOFTWARE IS AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SOFTWARE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. You agree to indemnify, defend and hold harmless DreamFactory, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from Your use of the Software, Your violation of this Agreement, or the infringement or violation by You of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Software are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, DreamFactory, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DREAMFACTORY OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF DREAMFACTORY, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, DREAMFACTORY'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE (IF ANY) IN THE PREVIOUS 12 MONTHS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
10.1 Choice of Law and Forum.
This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Santa Clara County, California.
10.2 Waiver and Severability.
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
10.3 General Provisions.
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. DreamFactory may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to DreamFactory under this Agreement must be sent to the address as provided by DreamFactory for such purpose. Any and all rights and remedies of DreamFactory upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on DreamFactory, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.