ClickBerry for Facebook [PC] 1.0.10

EULA - End User License Agreement

Actio-Media End User License AND RELATED Agreement

THIS END USER LICENSE AND RELATED AGREEMENT (“EULA”) sets forth the respective rights and responsibilities as between End User and Actio-Media, Inc., a Delaware corporation (“Actio-Media”), relative to the Actio-Media Software. This EULA is effective as of November 30, 2011 (the “Effective Date”).
RECITALS

A. Actio-Media develops and markets interactive video software products, including ClickBerry Editor software.
B. Actio-Media has licensed a software solution to End User.

1. IMPORTANT NOTICE.
THIS IS AN END USER AGREEMENT FOR THE ACTIO-MEDIA SOFTWARE AND RELATED AGREEMENTS. THIS AGREEMENT IS BINDING UPON END USER.
2. Definitions.
2.1 “Actio-Media” shall have the meaning set forth in the introductory paragraph above.
2.2 “Actio-Media Documentation” means the Actio-Media user and operations manuals, guides and related materials provided by Actio-Media to End User to facilitate use of the Actio-Media Products.
2.3 “Actio-Media Products” or “Products” means Actio-Media Software sold or licensed, as applicable, by Actio-Media currently or in the future.
2.4 “Actio-Media Software” or “Software” means the object code form of computer programs and Actio-Media Documentation developed by Actio-Media or its suppliers and licensed to End User in accordance with this EULA. Actio-Media Software includes (a) computer programs embedded in a separate medium (such as CD), (b) computer programs downloaded or received via mail from Actio-Media, and (c) Actio-Media Documentation related to the Actio-Media Software.
2.5 “End User (or “Customer”)” is means the company, entity or individual whose funds are used to pay the license fee for the Software.
2.6 “EULA” shall have the meaning set forth in the introductory paragraph above.
2.7 “Term” has the meaning set forth in Section 4.1 below.
2.8 “Trial Period” has the meaning set forth in Section 3.2 below.
2.9 “Use” or “usage” means storing, loading, installing, executing or displaying the Software.
3. Software License and Restrictions.
3.1 License. Subject to the terms and conditions of this EULA, and to End User’s performance hereunder, Actio-Media grants End User a non-exclusive, non-transferable (except as otherwise set forth herein), personal license to use the Actio-Media Software for End User’s internal purposes, but only so long as it is incorporated in the Actio-Media Product with which the Actio-Media Software was purchased. The Software is licensed on per computer basis, not per user, site or company. For example, if a person uses two computers, to install and use the Software on every computer, the person must purchase two licenses.
3.2 Trial Period. End User granted the right to use the Software without registration solely for the purposes of evaluating the performance of the Software for a period of no more than thirty (30) days (“Trial Period”). To remove the restrictions of the trial copy, End User agrees to purchase Software and to insert a serial number in a registration field which End User obtained by e-mail after purchasing Software. During Trial Period, End User is expected to use the Software on End User’s system and to thoroughly evaluate its usefulness and functionality before making a purchase.
3.3 No Distribution. End User may not, directly or indirectly, relocate, move, license, timeshare, loan, lease or otherwise distribute (through a third party service bureau or otherwise) the Actio-Media Software or any copies of the Actio-Media Software. End User will not permit any third party to communicate with the Actio-Media Software on End User’s servers.
3.4 Ownership. All rights, title and interest in and to, and ownership of, the Actio-Media Software and any modifications and derivative works thereof, whether created by Actio-Media, End User or a third party, will remain at all times solely and exclusively with Actio-Media. Nothing in this EULA will be construed to grant End User any rights of any kind with respect to any portion of the Actio-Media Software except as expressly set forth in this EULA. For the sake of clarity, notwithstanding anything to the contrary herein, End User shall not be permitted to modify or create derivative works of the Actio-Media Software without the prior written consent of Actio-Media.
3.5 Reverse Engineering and Other Restrictions. End User will not, and will not allow any third party to tamper with, modify, decompile, disassemble, derive the source code or otherwise reverse engineer or attempt to obtain the source code or internal design of the Actio-Media Software or Actio-Media Products for any purpose whatsoever (collectively, “Restricted Acts”). If applicable law permits End User to take any of the Restricted Acts notwithstanding the previous prohibition, and End User wishes to take any Restricted Act notwithstanding the previous prohibition, End User will first provide Actio-Media with thirty (30) days prior written notice. Actio-Media may terminate this EULA at any time during such notice period without liability arising from such termination. Upon termination, End User will immediately return or destroy all copies and embodiments of the Actio-Media Software to Actio-Media and cease using the Actio-Media Software.
3.6 Proprietary Notices. End User agrees to maintain, not remove or destroy, and reproduce on all copies of the Actio-Media Software, any names, logos, copyright notices, trademarks, other proprietary markings and confidential legends that appear on the Actio-Media Software.
3.7 Control of Duplication. End User will not, nor will it allow any third party to, circumvent the protection controlling the duplication or use of the Actio-Media Software, for example and without limitation, the software lock controlling the number of copies End User may make of the Actio-Media Software.
3.8 No Source Code. End User acknowledges and agrees that its rights under this EULA do not include rights to source code. In its exercise of the rights granted under this EULA, End User agrees not to take any action that would result in any requirement to disclose or make available to other parties the Actio-Media Software in source code format.
3.9 Certification. Upon thirty (30) days written notice to End User Actio-Media shall have the right to request End User to certify End User’s compliance with the restrictions and obligations in this EULA. Such requests will not occur more frequently than once per calendar year. If End User has used the Actio-Media Software in violation of this EULA, End User shall immediately cease such violating use, and pay Actio-Media any additional fees for the excess use according to Actio-Media’s then-current Actio-Media price list and policies, plus a late payment charge of one percent (1.0%) per month or the highest amount allowed by applicable law, if lower, from the date of initial excess use.
3.10 Title to Actio-Media Software. Title to Actio-Media Software remains with Actio-Media or its supplier. With respect to Actio-Media Software, the word “purchase” or similar or derivative words as used herein are understood to mean “license.”
3.11 License Fees. License fees for the Actio-Media Software are included in the price paid by End User to Actio-Media.
3.12 Discontinuance. Actio-Media may decide in its sole discretion at any time and without notice to discontinue the manufacture and sale of any Software. End User agrees that Actio-Media shall not be liable to End User or any third party for any such discontinuance.
4. Term and Termination
Term. This EULA commences on the Effective Date and continues perpetually (“Term”), unless terminated earlier in accordance with the terms hereof.
Termination for Cause. This EULA shall automatically terminate upon End User’s failure to comply with its terms or with any payment terms in effect. In addition, Actio-Media may immediately terminate this EULA upon determination, in its sole discretion, that he End User has failed to comply with its terms.
Effect of Termination. Upon the termination of this EULA for any reason, all rights, licenses, privileges and obligations granted or received by the parties under this EULA will immediately cease and terminate, except as specifically preserved, extended or imposed by this Section 4.3 or Section 7.13.
5. Marketing
5.1 Display of Licensed Trademarks. End User is obligated to use the trademarks, logos or service marks of Actio-Media (“Actio-Media Marks”) as they appear on the Products and Documentation. Except as set forth herein, End User may not use the Actio-Media’s trademarks, logos, service marks or names in press releases, web sites, other marketing, or other forms of public materials without the prior written consent of Actio-Media.
5.2 Standard Marketing. Actio-Media, Inc reserves the right to identify End User to the public as a customer of Actio-Media, Inc and use End User’s name and credentials in an appropriate and acceptable manner for standard marketing promotions. Acceptable and standard marketing promotions include but are not limited to: Client listings, case studies, press releases, surveys, interviews, reputable business publications, television and web site presentation and promotion etc. Nothing contained in this Section 7.4 shall be construed as an obligation by End User to disclose any of End User’s proprietary or confidential information to any third party. In addition, End User may opt-out from this Section 5.2 by sending an opt-out request to Actio-Media at support@clickberry.com.
6. Limitation of Liability
6.1 Limitation of Liability. EXCEPT WITH RESPECT TO A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER OR VIOLATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE TOTAL LIABILITY, IF ANY, OF ACTIO-MEDIA OR END USER TO THE OTHER PARTY OR ANY THIRD PARTY FOR ALL DAMAGES AND BASED ON ALL CLAIMS, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, ARISING FROM THE PRODUCTS OR SERVICES IS LIMITED TO THE PRICE PAID OR PAYABLE (OR IF GREATER, THE AMOUNT OF INSURANCE PROCEEDS ACTUALLY RECEIVED BY THE APPLICABLE PARTY FOR DAMAGES OR CLAIMS DESCRIBED IN THIS PARAGRAPH) TO ACTIO-MEDIA FOR THE PRODUCTS OR SERVICES.
EXCEPT WITH RESPECT TO A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER OR VIOLATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 Links and Other Information. The Software automatically references, displays, links to and provides web services related to sites and information located worldwide throughout the Internet. Because Actio-Media has no control over such sites and information, Actio-Media makes no guarantees as to such sites and information, including but not limited to:
(a) the accuracy, availability, sequence completeness, currency, content, validity or quality of any such sites and information, or
(b) whether they may locate unintended or objectionable content. By using the Software, End User acknowledges that Actio-Media makes no representations or warranties with regard to any sites or information displayed by or accessed though the Software.
7. Miscellaneous.
7.1 Amendments. Actio-Media, Inc, in its sole discretion, may modify this EULA at any time.
7.2 Binding Effect; Assignment. This EULA, and any rights and licenses granted hereunder, may not be assigned or otherwise transferred by End User, but may be assigned by Actio-Media without restriction.
7.3 Privacy Policy. The personal information of End User provided to Actio-Media, Inc during the ordering and registration process is used for Actio-Media's internal purposes only. Actio-Media uses the information it collects to learn what End Users like and to improve the Software. Except as otherwise expressly permitted by this EULA or as otherwise authorized by End User, Actio-Media will not give any of End User’s personal information to any third party without End User’s express approval except as reasonably required by law, as authorized by this provision or as necessary to protect Actio-Media, its agents and other Participants. Actio-Media can (and End User authorizes Actio-Media, Inc to) disclose any information about End User to private entities, law enforcement agencies or government officials, as Actio-Media, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law.
7.4 Email Communication. End User agrees that Actio-Media may communicate with End User via email and any similar technology for any purpose relating to the Software, other Actio-Media products and any services or software which may in the future be provided by Actio-Media or on Actio-Media’s behalf. If End User does not want to receive communication from Actio-Media, End User can unsubscribe at any time following the instructions contained in any email received from Actio-Media or by writing an opt-out request to Actio-Media at support@clickberry.com.
7.5 Notices. Any written notice required by this EULA will be deemed made (a) when delivered by personal service, (b) one (1) business day after being sent by recognized international overnight courier service (such as FedEx), or (c) when received, if sent by certified or registered mail, postage prepaid, return receipt requested.
Any such notice given to Actio-Media shall be sent to the following addresses:
Actio-Media
Attn:
Tel:
e-mail: support@clickberry.com
Any such notice given to End User shall be sent to the End User’s address designated by the End User for receipt of notice on file with Actio-Media or via an email communication as permitted under Section 7.5.
By giving to the other party written notice thereof, the parties hereto and their respective permitted successors and assigns will have the right from time to time and at any time during the Term of this EULA to change by written notice their respective addressee or address, including email address, for notices.
7.6 Applicable Law. The validity of this EULA and the rights, obligations and relations of the parties hereunder shall be construed and determined under and in accordance with the substantive laws of the State of California, without regard to any choice of law provisions thereof. All disputes arising under or related to this EULA shall be resolved exclusively in the State or Federal Courts located in Santa Clara County, California. The parties consent to the jurisdiction and venue of such courts and waive any claims as to inconvenient forum. The judgments of such courts may be enforced in any court of competent jurisdiction.
7.7 Export Control. End User will not export or re-export the Actio-Media Software, including any technical data, except as authorized and permitted by, and in compliance with, the laws and regulations, including but not limited to all export and re-export laws and regulations, of the United States.
7.8 Severability. If any provision of this EULA is invalid or unenforceable in any circumstances, it will be interpreted as much as possible to reflect the intent of the parties, and its application in any other circumstances and the remaining provisions of this EULA will not be affected thereby.
7.9 Entire Agreement. This EULA constitutes the entire agreement and understanding of the parties relating to the subject matter thereof. This EULA supersedes all prior written and oral agreements and all other communications between End User and Actio-Media (or a Actio-Media reseller) regarding the subject matter hereof. No contradictory terms and conditions of any purchase order, invoice or other document issued by End User relating to the subject matter of this EULA shall be binding.
7.10 Waiver of Breach. No waiver by a party of any breach of this EULA will constitute a waiver of any other breach of the same or other provisions of this EULA. No waiver by a party will be effective unless made in a record signed or otherwise authenticated by an authorized representative of such party.
7.11 Relationship of the Parties. Nothing in this EULA or in the activities contemplated by the parties will be deemed to create an agency, partnership, employment or joint venture relationship between the parties. Neither party will have any responsibility nor liability for the actions of the other party except as expressly provided in this EULA. Neither party will have any right or authority to bind or obligate the other party in any manner or make any representation or warranty on behalf of the other party. This EULA is made and entered into for the sole protection and benefit of Actio-Media, its licensors and suppliers, and End User, and no other person or entity shall be a direct or indirect beneficiary of or shall have any direct or indirect cause of action or claim arising from this EULA.
7.12 Headings. Any headings of sections herein are for convenience only and do not affect in any way the scope, intent or meaning of the provisions to which they refer.
7.13 Survival. Sections 2 and 5 through 7 will survive the expiration or earlier termination of this EULA.
7.14 Ability to Accept Terms of Service. End User affirms that he or she is older than 18 years of age, and is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these EULA, and to abide by and comply with these EULA.