ARES Kudo End User License Agreement (Effective June 18, 2015)
BY CREATING AN ACCOUNT, SIGNING IN VIA A WEB BROWSER OR MOBILE APP OR APPLICATION PROGRAMMING INTERFACE, AND/OR USING ANY SOFTWARE AND/OR APPLICATIONS (COLLECTIVELY, "SOFTWARE") PROVIDED TO YOU BY OR ON BEHALF OF GRAEBERT GMBH ("GRAEBERT") IN CONNECTION WITH YOUR USE OF THE ARES KUDO SERVICE (THE “SERVICE”), YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE
READ THIS END USER LICENSE AGREEMENT ("LICENSE AGREEMENT"); (2) YOU UNDERSTAND IT; (3) YOU ARE BOUND BY ITS TERMS; AND (4) YOU MAY RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE FOREGOING, YOU AGREE THAT YOU DO NOT HAVE A LICENSE TO, AND YOU WILL NOT USE, THE SOFTWARE.
This agreement (“Agreement”) sets forth the terms and conditions of your use of the ARES Kudo Software and Service.
THE AGREEMENT IS BINDING BETWEEN ARES KUDO AND YOU. DO NOT USE THE SERVICE UNTIL YOU HAVE CAREFULLY READ THIS AGREEMENT. BY USING THE SERVICE, YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATIONS ON LIABILITY SET FORTH HEREIN. IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT: [email protected]
1. DEFINITIONS. As used in this Agreement, the following terms have the following meanings:
●“Data” means any data or information that you display, transmit, generate, or store using the Service.
●“Documentation” means the online or other documentation (including online videos) provided by Graebert describing the Service and its use.
2.RIGHT TO USE SERVICE.
2.1License. Subject to your compliance with the terms of this Agreement, ARES Kudo hereby grants to you a
2.2Ownership. You acknowledge that (i) all right, title, and interest in and to the Service, the Software and Documentation, and all patents, copyrights, trade secret rights, trademarks, trade names, and other proprietary rights embodied therein or associated therewith, are and shall remain with Graebert and/or its third party licensors; (ii) this Agreement conveys no right or interest in the Service, the Software or Documentation other than a limited right to use the Service in accordance herewith; and (iii) the Service, Software, and Documentation are protected by the copyright laws of the United States and international treaties.
2.3Hardware; Passwords. You are responsible for obtaining and maintaining all of the hardware, software, Internet access, and other products and services that you may need to use the Service. You are responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other login information (collectively, “Passwords”) that are provided to you or that are generated in connection with your use of the Service. You are the only person to whom the license described in Section 2.1 extends, and you therefore are not permitted to allow any other person to use your Passwords to access the Service. You are fully and solely responsible for all activities that occur on the Service under your Passwords.
2.4Certain Obligations. You (i) shall not attempt to copy, alter, modify, adapt, translate, or create derivative works of the Software or Documentation; (ii) shall not attempt to remove or alter any proprietary notice or legends appearing in the Service, Software, or Documentation; (iii) shall not analyze the Software or Service for purposes competitive to ARES Kudo, or attempt to reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of the Software, or create derivative works, compilations, or collective works thereof; (iv) shall not attempt to use any component of the Software on a standalone basis; (v) shall not attempt to export the Service, Software, or Documentation; (vi) shall not disclose or make any Password(s) available to any other person; (vii) shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Service; (viii) shall not use any robot, spider, scraper or other automated means to access the Service, or use any data mining, data gathering or extraction method; (ix) shall not upload, post, email or otherwise send or transmit any material, including any software viruses or other computer code, files or programs, designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Service; (x) shall not use the Service or Software in any unauthorized or inappropriate way whatsoever, including but not limited to, by trespass or burdening network capacity; (xi) shall not use the Service in any manner to, in Graebert’s sole judgment, harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party; and (xii) shall not post for public viewing materials that are in Graebert’s sole judgment obscene or similarly offensive.
2.5 Your Data; Acknowledgment of Risks Related to Data. You represent and warrant that you are the owner, or legal custodian, of all your Data and have the full authority to transmit and store your Data using the Service. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of your Data. Graebert does not guarantee the security of your Data. Graebert will use commercially reasonable efforts to enable you to export your Data in DWG (.dwg) and/or other industry standard file formats. However, Graebert does not guarantee that your Data will be available or useable by you following the termination of your subscription or otherwise.
3. SUPPORT. Graebert will, as part of the Service, provide such support with respect to the Service as Graebert deems appropriate.
4. DISCLAIMER OF WARRANTIES. The Service is provided on an “AS IS” and “AS
AVAILABLE” basis, without warranty of any kind. GRAEBERT SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
(i) the Service will meet your requirements; or (ii) the Service will operate without interruption or be error free. Furthermore, Graebert is not responsible for delays, delivery failures, or any other unavailability, loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet. It is acknowledged that the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet, servers that are hosted by third party providers, and such related network and communications infrastructure.
5. LIMITATION OF LIABILITY. YOU RECOGNIZE THAT THE PRICE PAID FOR THE RIGHTS GRANTED TO YOU HEREIN MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE VALUE OF THE PRODUCTS TO BE DESIGNED, STORED, MANAGED OR DISTRIBUTED IN CONJUNCTION WITH THE SOFTWARE AND SERVICE. FOR THE EXPRESS PURPOSE OF LIMITING THE LIABILITY OF GRAEBERT AND ITS LICENSORS TO AN EXTENT WHICH IS REASONABLY PROPORTIONATE TO THE COMMERCIAL VALUE OF THIS TRANSACTION, YOU AGREE TO THE FOLLOWING LIMITATIONS ON GRAEBERT’S AND ITS LICENSORS’ LIABILITY. TO THE EXTENT ALLOWED BY LAW, GRAEBERT’S LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, SOFTWARE OR DOCUMENTATION FURNISHED HEREUNDER SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID GRAEBERT IN THE PAST 12 MONTHS. IN NO EVENT SHALL GRAEBERT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA OR PROFITS, WHETHER OR NOT GRAEBERT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT SUCH
LIMITATIONS ARE FAIR AND REASONABLE IN LIGHT OF THE TERMS UNDER WHICH THE SERVICE IS BEING MADE AVAILABLE TO YOU. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY STATED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. GRAEBERT'S THIRD PARTY LICENSORS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. GRAEBERT IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION OR DATA OF THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, OTHER USERS), AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. CERTAIN OF THE ABOVE LIMITATIONS MAY NOT APPLY IN SOME JURISDICTIONS, AND IN SUCH CASES GRAEBERT’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT DESCRIBED ABOVE THAT IS PERMITTED BY APPLICABLE LAW.
6. TERM AND TERMINATION. This Agreement will remain in effect until you elect to terminate your subscription, or Graebert terminates your access. Graebert shall be entitled to suspend, terminate, or limit your access to the Service at any time if you breach any term of this Agreement. Your access to, and use of, the Service may also be suspended for the duration of any scheduled maintenance or unscheduled downtime or unavailability of any portion, or all, of the Service for any reason, including as a result of power outages, system, or Internet failures or other interruptions. Upon termination of this Agreement, you shall make no further use of the Service. Termination of this Agreement shall not affect any obligations accrued prior thereto. Sections 2.2, 2.4, 2.5, 4, 5, 6 and 7 shall survive termination of this Agreement.
7.1Compliance with Laws; Export Control. You agree to comply with all laws and regulations relating to your use of the Service, including without limitation those relating to export and import, privacy, and personal data protection. Graebert 's obligation to fulfill this Agreement is subject to the proviso that it is not prevented by any impediments arising out of national and international foreign trade or customs requirements, including embargoes or other sanctions. This Agreement is subject to all United States and United Kingdom government laws and regulations as may be enacted, amended or modified from time to time regarding the export from the United States and United Kingdom of Graebert software, services, technology, or any derivatives thereof. In the event that Graebert approves your export of any of the foregoing, you will only export or
7.2Assignment. This Agreement is binding upon and inures to the benefit of the parties
and their respective successors and permitted assigns. You may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder without the prior written consent of Graebert.
7.3 U.S. Government Restricted Rights. The Software is a commercial product that has been developed exclusively at private expense. If the Software is acquired directly or indirectly on behalf of a unit or agency of the United States Government under the terms of (i) a United States Department of Defense (“DOD”) contract, then the Software and Documentation are considered “Commercial Items”, as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R.
set forth in this Agreement. The United States Government will only have the rights set forth in this Agreement. Graebert Software and Documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement.
7.4 Taxes. You shall be responsible for paying all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of Graebert. You shall reimburse Graebert for the amount of any such taxes or duties paid or incurred directly by Graebert as a result of this transaction, and you agree that Graebert may charge any such reimbursable taxes to the payment instrument (if any) that is associated with your subscription.
7.5 Amendments. Graebert reserves the right, from time to time, with or without notice to you, to change the terms of this Agreement in its sole and absolute discretion. The most current version of this Agreement will supersede all previous versions. Your use of the Software and Service after changes are made means that you agree to be bound by such changes. As such, you should review the Agreement periodically.