End User License Agreement

SWIIIT END USER LICENSE AGREEMENT

IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT (EULA) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND COMMONTOWN PRIVATE LIMITED (commnotown or we). PLEASE READ IT CAREFULLY BEFORE USING THE SWIIIT WEBPAGE BUILDER TOOL (SOFTWARE). IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING TO USE THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, PLEASE DISCONTINUE USE.

  1. DEFINITIONS
    1. End User Content means the text, pictures, graphics, sound, video or other data provided by End User to CommonTown (or its servers) for use with the Software pursuant to this Agreement, and any trademarks associated with such Customer Content

    2. "Artwork(s) shall mean animations, clipart, composites, digital footage, digital video, film footage, fonts, graphics, illustrations, images, motion sequences, photographs or any other visual representation regardless of whether the Artwork(s) are obtained via download or created by CommonTown.

    3. Software includes all computer software programs used to operate the Swiiit Online Webpage Builder Tool including any subsequent versions thereof made available to End User, if any, and all accompany documentation.

  2. ACCESS TO THE SOFTWARE
    1. Access. During the term of this Agreement, we may make the Software available to you at the Internet Uniform Resource Locator (URL) (i.e. domain name) www.swiiit.com, or such successor URL as we designate. You shall be responsible, at your own expense, for all hardware, client software and Internet connections required to access our servers at such URL.

    2. License Grant; Ownership. We hereby grant to you, or the Entity if you are using the Software as Representative, a non-exclusive, non-transferable license to use the Software solely for the purpose for which such Software was designed as expressly contemplated by the documentation provided by us. We shall retain all rights, title and interest in and to the Software and all intellectual property rights associated therewith. All rights not expressly granted by us are expressly reserved.

    3. Customer Content. In connection with your use of the Software, you may deliver End User Content to us from time to time in the formats requested by us. You hereby grant to us a worldwide, non-exclusive, royalty-free license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform the End User Content solely for the purpose of providing the Software and its functionality to you.

    4. Cookies and Other Tracking Methods. When you use the Software, we might store some information on your computer. Our servers automatically collect information about which pages you visit, your browser type, your IP address, your most-recently visited URL, your preferences and certain other information. This information will be in the form of a cookie or similar file. Cookies are small pieces of information stored on your computer hard drive, not on our servers. Cookies help you navigate a web site as easily as possible. Cookies can help us provide information about how the Software performs and to improve functionality. You are always free to decline our cookies if your browser permits, but some parts of the Software may not work properly in that case. In some cases, we track or collect information about your use of the Software by the numeric address assigned to the computer you are using (your IP address) or by the URLs that you come from or leave to. These methods allow us to resolve server problems or administer the Software. We may also automatically collect and store statistics and other information about you and your use of the Software both on an aggregate, non-personally identifiable basis and in a manner that may allow us to associate such information with other information about you.

    5. Security. We use industry-standard methods to protect your End User Content from unauthorised access. Among other techniques, we store such information on a computer in a secure location, and we restrict the number of employees internally who can access such data. We are not responsible if some other third party gains access to your End User Content by evading our security measures or otherwise obtains access to your End User Content. There is no such thing as absolute security on the Internet.

    6. No Consulting Services. You shall not be entitled to any consulting services or training services under this Agreement, although you may access the FAQs, help and manual for the Software which are made available on Swiiits website from time to time. For additional fees and subject to the terms and conditions of a separate agreement, CommonTown may provide consulting services and training services or custom integration, design and development services (collectively, Consulting Services) for the Software.

  3. RESTRICTIONS

     

     

    1. Access Restrictions. Each user identification and password is assigned to and to be used solely by one specific individual, and no user identification or password may be used by more than one specific individual. You shall not permit anyone other than yourself to access the Software using your user identification or password without our express prior written consent.

    2. Volume Limitations. You acknowledge that we may limit the amount of storage space on our servers for End User Content. In the event that you exceed such limits, we will provide you with reasonable advance notice to remedy such excess, by alerting you with an email.

    3. Usage restrictions. You shall not (and shall not permit any third party to) copy, modify or reverse engineer any part of the Software and shall not use the Software to develop any derivative works or any functionality compatible or competitive software. You shall not remove any proprietary markings within the Software. You shall not use the Software in any manner which violates any law or regulation, is for fraudulent purposes, contravenes public policy, may cause Swiiit or its licensors to be subject to investigation, prosecution or legal action or in contravention of the written instructions provided by CommonTown or is of a defamatory, offensive, abusive, obscene or menacing nature.
    4. End User Content Restrictions. CommonTown acts as a passive conduit for the online storage, distribution and publication of End User Content, and shall bear no liability whatsoever for End User Content. However, we may take any action we deem reasonable or appropriate with respect to any End User Content that we believe may create liability for CommonTown or any third party. You shall not provide any End User Content that infringes on any intellectual property or other right, violates any law or contains any virus.

    5. Artwork(s) Restrictions. Use the Artwork(s), or any part of the Artwork(s), to copy and reproduce. CommonTown has the full rights to the Artwork(s), and therefore you cannot establish your own rights.

  4. WARRANTIES
    1. Warranty. We warrant to you that access to the Software in accordance with its related documentation and this Agreement shall be available to you no less than 99.5% of the time during any calendar month, excluding (i) emergency or scheduled maintenance, (ii) any cause or causes beyond our reasonable control (e.g., force majeure events described in Section 11.3), (iii) the nonperformance of any hardware, software (e.g. mis-configuration of users network environment or browser), ISP connection or other equipment that is not provided by CommonTown, or (iv) Internet performance or connectivity issues outside the reasonable control of CommonTown.

    2. Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 4.1, COMMONTOWN DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPILED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, CONFORMANCE WITH DESCRIPTION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Expect as set forth in Section 4.1, CommonTown does not guarantee continuous, uninterrupted or secure use of the Software, and CommonTown shall not be Page 3 liable if you are unable to access the Software or any End User Content. You acknowledge that you have not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein.

    3. Remedy. Upon a breach of the warranty contained in Section 4.1, you shall have the right to terminate this Agreement, exercisable only during the thirty (30) day period following such breach, upon written notice to us. This Section 4.3 sets forth your sole and exclusive remedy, and CommonTowns sole and exclusive obligation and liability, with respect to any breach of, or failure to comply with, the warranty contained in Section 4.1.

  5. UPDATES AND UPGRADES
    1. Updates. We reserve the right to update the Software from time to time in our sole and absolute discretion to, among other things, implement bug fixes and functionality changes such as newly developed features (each, an Update). During the term of this Agreement, you shall receive access to all Updates without additional charge, and all such Updates shall be deemed to be Software under this Agreement. We reserve the right to render the Software and any End User Content inaccessible without notice.

    2. Upgrades, Derivative Versions and New Products. We may, from time to time, develop (i) new versions of the Software which, among other things, implement material functionality changes (each, an Upgrade), (ii) a version of the Software which is implemented in a different programming language or operates on a different software or hardware platform (a Derivative Version), or (iii) products or services with materially different functionality (New Products). You shall have no rights to any Upgrade, Derivative Version or New Product under this Agreement. We may, however, from time to time during the term of this Agreement and in our sole discretion, make available to you certain Upgrades, Derivative Versions or New Products under the terms of this Agreement subject to your, or the entitys if you are using the Software as a Representative, assent to (A) any supplemental or amended terms and conditions that we require, and (B) any additional Fees that we require.

    3. Migration. You understand and agree that certain Updates, Upgrades, Derivative Versions or New Products may require migration services in order to access your End User Content using such Updates, Upgrades, Derivative Versions or New Products. We may, in our sole discretion, require additional Fees to perform these migration services. We also may, in our sole discretion, give you the choice of either (A) paying such additional Fees for such migration services, or (B) continuing to use the Software without such Updates, Upgrades, Derivative Versions or New Products.

  6. LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF.COMMONTOWNS AGGREGATE MAXIMUM LIABILITY TO END USER (OR THE ENTITY IF END USER USES THE SOFTWARE AS A REPRESENTATIVE) IS LIMITED TO THE FEES PAID BY END USER FOR THE USE OF THE SOFTWARE UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. YOU ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 7 ARE A FUNDAMENTAL PART OF THE BASIS OF COMMONTOWNS BARGAIN HEREUNDER, AND COMMONTOWN WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.

  7. INDEMNIFICATION. You, or the Entity if you are using the Software as a Representative, shall indemnify CommonTown and its officers, directors, shareholders and employees (each a CommonTown Indemnified Party) against any and all harm, claims, losses, costs and expenses, including attorneys fees, which a CommonTown Indemnified Party may incur as a result of claims in any form by third parties arising from or relating to (a) any End User Content (including any content on any web site to which any End User Content is hyperlinked) , (b) your use of the Software, (c) your acts, omissions or representations, and (d) any content contained on your web sites.

  8. CONFIDENTIALITY. All information with respect to the Software, all End User Content and all other non-public information (whether technical or otherwise) made available or disclosed by either party (the Disclosing Party) to the other party (the Recipient) shall be deemed Confidential Information hereunder. The Recipient shall not, without the prior written consent of the Disclosing Party, disclose to any third party or use any Confidential Information for any purpose other than the provision or sue of the Software hereunder. Upon termination of this Agreement, each party shall either return to the other party all documentation containing Confidential Information or certify to the other party the destruction thereof. Confidential Information shall not include (i) any information that is known by the Recipient or the general public at the time of disclosure or thereafter becomes known to the general public through no fault of the Recipient, (ii) is independently developed by the Recipient, (iii) is disclosed to the Recipient by a third party without any breach of confidentiality obligation to the Disclosing Party, or (iv) is approved for disclosure by the prior written consent of the Disclosing Party.

  9. GENERAL PROVISIONS
    1. Severability; Headings. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

    2. Export Control. You will comply with all applicable export and import control laws and regulations applicable to use of the Software. You, or the Entity if you are using the Software as a Representative, hereby agree to defend, indemnify and hold harmless CommonTown from and against all breaches of this Section.

    3. Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, Internet or other network brownout or failures, telecommunications provider failures, power failures, hacker attacks, computer viruses, and acts of civil and military authorities. Each party acknowledges that the operation of CommonTowns servers and the provision of the Software may be interfered with by numerous factors outside of CommonTowns control.

    4. Notice. Any notices hereunder shall be given to the appropriate party at the address specified above or at such other address as the party shall specify in writing. Notice shall be deemed given upon personal delivery; if sent by a national overnight express service; if sent by fax, upon confirmation of receipt; or if sent by certified mail, postage prepaid, three (3) days after the date of mailing.

    5. Entire Agreement. This Agreement constitutes the entire agreement between you and CommonTown (or you, the Entity and CommonTown if you are using the Software as a Representative) with respect to the subject matter hereof and neither party shall be liable to the other in any manner for any representations, warranties or covenants except as specifically set forth herein.