End User Licensing Agreement
MARKETLY LLC (“MARKETLY”) LICENSES THIS PLATFORM (“PLATFORM”) TO YOU SUBJECT TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”). THIS PLATFORM HAS NOT BEEN RELEASED FOR SALE, DISTRIBUTION OR USAGE FOR THE GENERAL PUBLIC.
THE PLATFORM AND ITS CONTENTS ARE PROTECTED BY COPYRIGHT AND IT IS LICENSED ON A LIMITED BASIS TO YOU AND NOT SOLD TO YOU. PLEASE READ THESE TERMS AND CONDITIONS BEFORE YOU USE THE PLATFORM. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS EULA, PLEASE DO NOT USE THE PLATFORM OR ITS CONTENT.
MARKETLY RESERVES THE RIGHT TO UPDATE THIS EULA AT ANY TIME, AND IS NOT OBLIGATED TO NOTIFY YOU. NOTWITHSTANDING THE FORGOING, MARKETLY WILL REASONABLY INFORM YOU OF ANY REVISIONS, MODIFICATIONS OR OTHER CHANGES TO THE PLATFORM, AND THIS EULA, BY POSTING A NOTIFICATION ON THE PLATFORM.
1) LICENSE GRANT, USE AND OWNERSHIP
a) Limited License. Subject to compliance with this Agreement, Marketly hereby grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) to use the Platform solely for purposes intended within the scope of the subject matter of the Platform content.
b) Restrictions. Licensee shall not copy or use the Platform except as expressly permitted in this EULA. Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce any portion of the Platform. Licensee will not remove or alter any trademark, logo, copyright or other proprietary notices, symbols or labels on or accompanying the Platform. The Platform is proprietary property of Marketly. In no event shall Licensee use the Platform for Licensee’s product development or any other commercial purpose.
c) Ownership. Marketly shall own and retain all right, title and interest in and to the intellectual property rights in the Platform and any derivative works thereof. The Platform is protected under U.S. Copyright laws, other proprietary laws, and international treaties. Licensee does NOT acquire any other rights, express or implied, in the Platform. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO MARKETLY.
d) Support Services. Marketly may, but is under no obligation to: (i) provide any technical support under the terms of this license; (ii) continue to develop, productize, support, offer for sale or in any other way continue to provide or develop Platform either to Licensee or to any other party.
2) TERM AND TERMINATION.
Licensee’s rights with respect to the Platform will begin on th date of its Agreement with the Marketly and shall terminate (i) terminate upon termination of the Services Agreement between the parties; or (ii) by either Party due to breach of either party’s obligations hereunder with 30 days’ notice in case of incurable breach.
3) CONFIDENTIALITY, NONDISCLOSURE.
a) Confidential Information. For purposes of this EULA “Confidential Information” shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Platform, and other information provided by Marketly, whether disclosed orally, or in writing. Confidential Information shall include without limitation the Platform.
b) Non-Disclosure. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this EULA. In no event shall Licensee use the Platform or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Confidential Information.
c) Any data or information disclosed by Licensee to Marketly shall be deemed as Licensee’s confidential information and Marketly shall maintain strict confidentiality of such information and not disclose it to any third party. Marketly shall delete, or return Licensee’s confidential information to Licensee upon expiry or termination of this EULA or at Licensee’s request.
4) LIMITATION OF LIABILITY.
IT IS UNDERSTOOD THAT THE PLATFORM IS PROVIDED “AS-IS”. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR – WITHOUT LIMITATION – ANY LOSS OF USE; INTERRUPTION OF BUSINESS; OR ANY DIRECT; INDIRECT; SPECIAL; INCIDENTAL; EXEMPLARY OR PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT; TORT (INCLUDING NEGLIGENCE); STRICT PRODUCT LIABILITY OR OTHERWISE; WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM (INCLUDING BUT NOT LIMITED TO LOSS OR UNCONSENTED TO DISCLOSURE OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY LICENSEE OR THIRD PARTIES OR A FAILURE OF THE PLATFORM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF MARKETLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S TOTAL LIABILITY UNDER THIS EULA SHALL EXCEED THE FEE RECEIVED BY MARKETLY FROM LICENSEE FOR THE APPLICABLE LICENSE OR STATEMENT OF WORK IN THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM.
5) WARRANTY: Marketly warrants that the Platform will perform in accordance with Platform documentation, if any. In case the Platform does not perform as intended, Marketly shall correct the deficiencies within a reasonable time without any charge.
6) INDEMNITY: Each party shall indemnify and hold harmless the other and its officers, contractors and employees (“Personnel”) from and against any claim, damage or liabilities (or actions in respect thereof that may be asserted by any third party) that may result from any third party claims arising out of or relating to either party’s unauthorized use of the services, and shall reimburse the other for all expenses (including attorney’s fees) as incurred by the indemnified party in connection with any such action or claim, except to the extent any such claim is finally determined to have resulted from gross negligence or intentional misconduct of the other party. Provider shall indemnify Client for all penalties and expenses arising from third party claims alleging (i) breach of third party intellectual property rights by Provider (ii) violation of applicable laws (iii) breach of confidentiality
7) GOVERNING LAW; DISPUTE RESOLUTION. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. Marketly prefers to resolve things amiably when possible therefore, Licensee agrees to the following dispute resolution policy in connection with any potential claims or disputes arising from your use of the Application. Licensee shall first notify Marketly of its dispute by sending a notice to [email protected]
a) Informal Negotiations: Parties to a dispute concerning this Agreement will attempt to informally negotiate a potential settlement or resolution to the dispute;
b) Arbitration: In the event that informal negotiations are unsuccessful, the parties agree to follow the arbitration procedures set forth by JAMS resolve the dispute.
c) Binding Arbitration: If for any reason arbitration is unsuccessful or unavailable to the parties, the parties each agree to submit to binding arbitration in the jurisdiction of the State of Washington. Each party is responsible for paying its own filing, administrative and arbitrator fees. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
8) ENTIRE AGREEMENT. This Agreement along with the Services Agreement, constitutes the complete and exclusive agreement between Licensee and Marketly with respect to the Platform, and supersedes all prior or contemporaneous oral or written communications, unless otherwise mutually agreed to by the parties in writing.