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Now original LICESE and templates are included
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Widen Commercial License Agreement | ||
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This Fine Uploader Subscription and Support Agreement (the “ SSA ”) is entered into | ||
between Widen Enterprises, Inc., a Wisconsin corporation having its principal United | ||
States offices at 6911 Mangrove Lane, Monona, WI 53713 (“ Widen ”), and the individual, | ||
corporation or other business entity (“ Customer ”) identified as the Customer by downloading | ||
the commercial version of Fine Uploader Software. Widen and Customer may be referred to | ||
individually as a “ Party ” and collectively as the “ Parties ”. | ||
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Widen offers this SSA for our commercial customers who require the use of Fine Uploader | ||
in a commercial context. | ||
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For purposes of this SSA, the term “ Fine Uploader Software ” shall mean Fine Uploader | ||
software delivered or made available in source or object form. | ||
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For purposes of this SSA, the term “ Fine Uploader Support ” shall mean software maintenance | ||
releases and software support as described below for the Fine Uploader Software. | ||
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This SSA shall become effective upon Customer downloading a commercial copy of Fine | ||
Uploader Software (“ Effective Date ”). By downloading a commercial version of Fine Uploader | ||
Software, Customer agrees to this SSA. | ||
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Terms and Conditions | ||
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Grant of Commercial Subscription Software License. | ||
The license described in this section applies to Fine Uploader Software identified or | ||
described at fineuploader.com. Widen hereby grants Customer a non-exclusive, | ||
non-transferable, non-assignable, non-sublicenseable license (“ Subscription License ”) to | ||
use, solely for use in the Customer’s software application, the object code of Fine Uploader | ||
Software for the Term specified herein, and subject to the limits of use authorized for | ||
Fine Uploader Software (the “ Limits ”). During the Term of the Subscription License for | ||
Fine Uploader Software, Customer is authorized to create as many copies of Fine Uploader | ||
Software as are strictly necessary to support the Limits of use authorized. | ||
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Restrictions on Distribution and Copying. | ||
Unless expressly authorized in writing by Widen, Fine Uploader Software provided by | ||
Widen under this SSA may not be distributed to any other person or entity, and any such | ||
distribution shall be deemed a copyright infringement as well as a material breach of | ||
this SSA. | ||
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Delivery. | ||
Customer may obtain Fine Uploader Software by electronically downloading the Fine | ||
Uploader Software from fineuploader.com or by performing an authorized software | ||
update. All Fine Uploader Software shall be deemed delivered upon download, copying, | ||
or receipt from Widen. | ||
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Term and Termination. | ||
The term of this SSA shall commence on the Effective Date and shall continue for a | ||
period of twelve (12) months unless terminated earlier as set forth herein (the “ Term ”). | ||
This SSA shall terminate at the end of the Term except for such | ||
provisions that may be indicated herein as surviving termination of this SSA. Either | ||
Party may terminate this SSA and the License granted hereunder upon written notice for | ||
any material breach of this SSA, including failure to pay undisputed Fees when and as | ||
due. In the event of termination of this SSA for any cause, all rights granted hereunder | ||
automatically revert to the granting Party. | ||
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If a Party breaches any of the terms of this SSA and fails to cure such breach within | ||
fifteen (15) days of written notification of such breach (the “ Cure Period ”), | ||
the non-breaching Party giving such notice shall have the right, without prejudice to any other | ||
rights it may have, so long as the breach remains uncured, to terminate this SSA, | ||
effective upon giving written notice to the breaching Party. This SSA may also be | ||
terminated immediately by a Party upon the other Party’s bankruptcy, liquidation, | ||
judicial management, receivership, act of insolvency or change in control. | ||
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Fees and Limits. | ||
The fee for Fine Uploader Software and Fine Uploader Support is an annual charge that | ||
includes all Releases and Patches within the Term (“ Fees ”). The Fees and | ||
Limits for Fine Uploader Software and Fine Uploader Support are available at | ||
fineuploader.com/purchase. | ||
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Costs and Expenses. | ||
Except as expressly provided in this SSA, each Party shall be responsible for all costs and | ||
expenses incurred by that Party in performing its obligations or exercising its rights under | ||
this SSA. | ||
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Payment Terms. | ||
The Fees must be paid in U.S. Dollars. Customer authorizes Widen to bill Customer’s | ||
credit card for the Fees for items specified at www.fineuploader.com. Any and all | ||
payments made by Customer pursuant to this SSA are non-refundable unless otherwise | ||
specified. If Customer fails to fulfill its payment obligations for undisputed Fees as | ||
specified herein, Widen shall have the right to (a) charge Customer for any reasonable | ||
collection costs, including attorneys’ fees; and (b) suspend or cancel performance of all | ||
or part of this SSA. | ||
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Taxes. | ||
“ Taxes ” means any form of taxation, levy, duty, customs fee, charge, contribution | ||
or impost of whatever nature and by whatever authority imposed (including without | ||
limitation any fine, penalty, surcharge or interest), excluding any taxes based solely on | ||
the net U.S. income of Widen. Customer shall pay to Widen an amount equal to any | ||
Taxes arising from or relating to this SSA that are paid by or are payable by Widen | ||
including, without limitation, sales, service, use, or value added taxes. If Customer is | ||
required under any applicable law or regulation, domestic or foreign, to withhold or | ||
deduct any portion of the payments due to Widen, then the sum payable to Widen shall | ||
be increased by the amount necessary so that Widen receives an amount equal to the sum | ||
it would have received had Customer made no withholdings or deductions. Customers | ||
with a tax-exempt status shall provide to Widen documentation of such status sufficient | ||
for Widen and Customer to avoid liability for qualifying Taxes. | ||
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Limited Warranty and WARRANTY DISCLAIMER for Fine Uploader Software. | ||
ALL FINE UPLOADER SOFTWARE PROVIDED HEREUNDER IS PROVIDED | ||
“AS IS” . Widen expressly warrants that it is the owner or licensor of Fine Uploader | ||
Software, including any and all copyrights and trade secrets, and has the right and | ||
authority to enter into this SSA in accordance with the terms herein. EXCEPT AS MAY | ||
BE PROVIDED IN ANOTHER WRITTEN AGREEMENT BETWEEN WIDEN AND | ||
THE CUSTOMER, THE FOREGOING WARRANTY IS EXCLUSIVE OF ALL | ||
OTHER WARRANTIES , whether written, oral, express or implied, INCLUDING BUT | ||
NOT LIMITED TO the implied warranties of merchantability or fitness for a particular | ||
purpose. WIDEN DOES NOT WARRANT that the Fine Uploader Software will meet | ||
Customer’s requirements, or that the operation thereof will be uninterrupted or error-free. | ||
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LIMITATION OF LIABILITY. | ||
NOTWITHSTANDING ANY OTHER TERM OF THIS SSA TO THE CONTRARY, | ||
IN NO EVENT SHALL WIDEN (OR ITS EMPLOYEES, AGENTS, SUPPLIERS AND | ||
LICENSORS) BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY CLAIMING | ||
THROUGH CUSTOMER OR END USER FOR ANY DIRECT, INDIRECT, SPECIAL, | ||
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, CONTINGENT OR PUNITIVE | ||
DAMAGES HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS | ||
OF REVENUE, PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS | ||
INFORMATION, LOSS OF CAPITAL, INCREASED COSTS OF OPERATION, | ||
LITIGATION COSTS AND THE LIKE), WHETHER BASED UPON A CLAIM OR | ||
ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER | ||
LEGAL OR EQUITABLE THEORY, IN CONNECTION WITH THE USE OR | ||
PERFORMANCE OF THE FILEUPLOADER SOFTWARE PROVIDED BY WIDEN | ||
TO CUSTOMER, REGARDLESS OF WHETHER WIDEN HAS BEEN ADVISED | ||
OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE | ||
REASONABLY FORESEEABLE. | ||
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IN NO EVENT SHALL WIDEN’S LIABILITY TO CUSTOMER, WHETHER IN | ||
CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY | ||
OR PURSUANT TO ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED | ||
THE FEES PAID BY CUSTOMER TO WIDEN PURSUANT TO THIS SSA DURING | ||
THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO WIDEN’S | ||
RECEIPT OF CUSTOMER’S WRITTEN CLAIM. CUSTOMER ACKNOWLEDGES | ||
AND AGREES THAT WIDEN HAS ENTERED INTO THIS SSA IN RELIANCE | ||
UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF | ||
LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION | ||
OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A | ||
CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE | ||
CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS | ||
OF THE BARGAIN BETWEEN THE PARTIES. | ||
This provision shall survive the termination of this SSA. | ||
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Trademark Rights and Notices. | ||
Customer recognizes and acknowledges Widen’s ownership and title to the Fine | ||
Uploader trademark, and to Widen’s copyrights, patents, trademarks, trade secrets, and | ||
any other intellectual property and proprietary rights of any kind in any jurisdiction | ||
(collectively the “ Widen Intellectual Property Rights ”) embodied in Fine Uploader | ||
Software or on Widen’s website. Nothing in this SSA shall be interpreted to assign | ||
or to grant exclusive rights to Customer of any of Widen Intellectual Property Rights. | ||
Customer hereby agrees not to use the Fine Uploader trademark or Widen’s trade names | ||
in Customer’s corporate title or name, or for its products or services. Neither Party will | ||
engage in any action associated with the other’s intellectual property rights that adversely | ||
affects the good name or goodwill associated with those intellectual property rights. | ||
Customer agrees not to contest or take any action in opposition to the Fine Uploader | ||
trademark or to attempt to register any mark substantially similar to Fine Uploader | ||
trademark. This provision shall survive the termination of this SSA. | ||
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Mutual Confidentiality. | ||
A Party (the “ Discloser ”) may disclose to the other Party (the “ Recipient ”) certain | ||
valuable confidential and proprietary information (“ Confidential Information ”) relating | ||
to the Discloser’s business including without limitation technical data, trade secrets | ||
or unpublished know-how, research and product plans, products and product designs, | ||
inventions, patent applications, copyrighted and unpublished works, financial or other | ||
business information, marketing plans, customer lists, competitive analysis, and tactical | ||
and strategic business objectives. Discloser’s Confidential Information shall be identified | ||
by a prominent mark or accompanying notice that it is “confidential” or “proprietary”, | ||
or shall be identified as Confidential Information in a written notice within thirty (30) | ||
days of its disclosure. Recipient agrees and promises not to disclose said Confidential | ||
Information to any third party who has not also executed a similar confidentiality | ||
agreement with Discloser, unless Discloser intentionally discloses said Confidential | ||
Information to the public or authorizes Recipient to do so in writing as specified in | ||
this SSA. Recipient further agrees to take all reasonable precautions to prevent any | ||
unauthorized disclosure of Discloser’s Confidential Information. Discloser’s Confidential | ||
Information shall no longer be confidential if (a) it is already known to Recipient, as | ||
evidenced by a writing dated prior to the date of disclosure; or (b) it is or becomes | ||
generally known to the public at large through no wrongful act or other involvement | ||
of the Recipient; or (c) it is received from an unaffiliated third party without either an | ||
obligation of nondisclosure or breach of an obligation of confidentiality or nondisclosure; | ||
or (d) it is independently developed by the Recipient or by third parties without any | ||
access whatsoever to the Discloser’s Confidential Information; or (e) it is required to be | ||
disclosed by a court of competent jurisdiction or applicable law, following notice and an | ||
opportunity for Discloser to defend, limit or protect such disclosure. This provision shall | ||
survive the termination of this SSA. | ||
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No Agency. | ||
The Parties are independent contractors. Neither Party is an employee, agent, joint | ||
venturer or legal representative of the other Party for any purpose. Neither Party shall | ||
have the authority to enter into any legal or equitable obligation for the other Party. | ||
Under no circumstances may either Party hold itself out to have agency authority for | ||
the other Party. The Parties agree not to make false or misleading statements, claims or | ||
representations about the other Party, its products or the relationship between the Parties. | ||
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Notices. | ||
All notices required or permitted under this SSA shall be in writing and shall be deemed | ||
received when confirmed by recipient. In each case, such notice shall be provided to the | ||
email address or other address as the Parties may later designate. | ||
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Severability. | ||
If the application of any provision or provisions of this SSA to any particular set of | ||
facts or circumstances is held to be invalid or unenforceable by a court of competent | ||
jurisdiction, the validity of said provision or provisions to any other particular set of facts | ||
or circumstances shall not, in any way, be affected. Such provision or provisions shall | ||
be reformed without further action by the Parties to the extent necessary to make such | ||
provision or provisions enforceable when applied to that set of facts or circumstances. | ||
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Amendment and Waiver. | ||
This SSA may not be modified or amended except in a writing signed by a duly | ||
authorized representative of each Party. The waiver by either Party of any of its rights or | ||
remedies hereunder shall not be deemed a waiver of such rights or remedies in the future | ||
unless such waiver is in writing and signed by an authorized officer of such Party. Such a | ||
waiver shall be limited specifically to the extent set forth in said writing. | ||
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Assignment. | ||
Neither Party may assign this SSA or any right or obligation hereunder, without the other | ||
Party’s prior written consent, which shall not be unreasonably withheld. However, either | ||
Party may assign this SSA in the event of a merger or consolidation or the purchase of all | ||
or substantially all of its assets. This SSA will be binding upon and inure to the benefit of | ||
the permitted successors and assigns of each Party. | ||
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Governing Law and Venue. | ||
The validity, interpretation and enforcement of this SSA shall be governed by and | ||
construed according to the laws of the State of Wisconsin, U.S.A., without reference | ||
to its conflicts of laws doctrine. The Parties irrevocably submit to venue and exclusive | ||
personal jurisdiction in the applicable courts of Dane County, Wisconsin, for any dispute | ||
regarding the subject matter of this SSA including any and all theories of recovery, and | ||
waives all objections to jurisdiction and venue of such courts. Customer and Widen | ||
waive any right to a jury trial regarding any dispute between the Parties. This provision | ||
shall survive the termination of this SSA. | ||
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General. | ||
This SSA constitutes the exclusive terms and conditions with respect to the subject | ||
matter hereof. This SSA represents the final, complete and exclusive statement of the | ||
agreement between the Parties with respect to subject matter hereof and all prior written | ||
agreements and all prior and contemporaneous oral agreements with respect to the | ||
subject matter hereof are merged herein. The Parties both state that it is their intention to | ||
resolve disputes between them concerning this SSA directly in good faith negotiations. | ||
Notwithstanding the foregoing, nothing in this section shall prevent either Party from | ||
applying for and obtaining from a court a temporary restraining order and/or other | ||
injunctive relief. This provision shall survive the termination of this SSA. | ||
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Maintenance and Support | ||
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Engagement of Support Services. | ||
Upon payment by Customer of Fees for Fine Uploader Support as specified at | ||
www.fineuploader.com, Widen shall provide Fine Uploader Support as described in | ||
this SSA to Customer for specified Fine Uploader Software and for the Term identified | ||
herein. | ||
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Software Versioning. | ||
Fine Uploader Software is identified by a version number using the following format: | ||
[major release].[minor release].[patch level]. A “ Release ” is a vehicle for delivering | ||
major and minor feature development and enhancements to existing features in Fine | ||
Uploader Software. A “ Patch ” is a vehicle for delivering enhancements to existing | ||
features and to correct defects. New Patches incorporate all applicable defect corrections | ||
made in prior Patches. New Releases incorporate all applicable defect corrections made | ||
in prior Releases and Patches. | ||
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Eligibility for Support. | ||
Fine Uploader Software is eligible for Fine Uploader Support for a period of twelve (12) | ||
months from the Effective Date. | ||
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Enhancements and Upgrades. | ||
During the Term of Fine Uploader Support, Widen shall provide to Customer, free of | ||
additional charge, all Releases and Patches to the Fine Uploader Software that it makes | ||
generally available. Customer is responsible for installing and testing enhancements and | ||
upgrades. | ||
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Exclusions from Support Services. | ||
Widen shall have no obligation to support Fine Uploader Software: (i) that has been | ||
altered or modified without written authorization by Widen; (ii) that is not installed | ||
on supported systems in accordance with Fine Uploader Software documentation; (iii) | ||
that is experiencing problems caused by Customer’s negligence, misuse, or hardware | ||
malfunction; or (iv) that is being used inconsistent with Fine Uploader Software | ||
documentation. Fine Uploader Support does not include information or assistance | ||
on technical issues related to the debugging, installation, administration, and use of | ||
Customer’s computer systems and enabling technologies including, but not limited to, | ||
databases, computer networks, communications, hardware, hard disks, networks, and | ||
printers. | ||
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Confidentiality of Customer Data. | ||
Widen will not copy or distribute Customer data while providing Fine Uploader Support. | ||
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Limited Warranty for Fine Uploader Support. | ||
Widen warrants that Fine Uploader Support will be performed with the same degree of | ||
skill and professionalism as is demonstrated by like professionals performing services of | ||
a similar nature, and in accordance with generally accepted industry standards, practices, | ||
and principles applicable to such support services. | ||
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Customer Responsibilities. | ||
Customer shall provide reasonable cooperation and full information to Widen with | ||
respect to Widen’s furnishing of Fine Uploader Support under this SSA. | ||
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General Support. | ||
Customer shall submit issues or questions to the Fine Uploader online community forum | ||
as a single issue or question. Widen will respond to the issue or question via the online | ||
community forum administered by Widen. |
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