License Agreement for ClikServ Software, Inc.
NOTICE TO USER: Please read this contract carefully. By indicating your assent and acceptance by clicking the appropriate “Submit” button on this website, or by using, copying, distributing any or all portions of the Software (“Software”), you accept all the terms and conditions of this agreement. You agree that this agreement is enforceable like any written negotiated agreement signed by you. This agreement is enforceable against you and any legal entity that obtained the Software and on whose behalf it is used. If you do not agree to the terms of this agreement, do not use this software and do not access this website. ClikServ owns all intellectual property in the Software. ClikServ permits you to use the Software only in accordance with the terms of any Customer Order, this License Agreement, the ClikServ Acceptable Use Policy & User Agreement, and the ClikServ Privacy Policy (see www.clikserv.com/legal for these documents).
1. Definitions.
“Software” means (a) all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disk(s), CD-ROM(s) or other media on which the Software may be provided under this Agreement, including but not limited to (i) ClikServ or third party computer information or software; and (ii) related explanatory written materials or files (“Documentation”); and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by ClikServ (collectively, “Updates”).
“Use” or “Using” means to access, install, download, copy, or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
“Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by ClikServ.
“Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Customer Order” means any order form, exhibit, attachment or amendment which sets out the method and amount ClikServ shall pay the Customer the fees agreed upon, as well as the length of term or other relevant provisions ClikServ and User agrees upon that are in accordance with the terms and conditions set forth herein.
“Domain” means a unique internet domain name provided for addressing of an internet website, e.g. addresses similar to www.clikserv.com.
2. Software License.
If you obtained the Software from ClikServ or one of its authorized distributors, and subject to your compliance with the terms of this agreement (this “Agreement”), including the restrictions in Section 3, ClikServ grants to you a non-exclusive license to Use the Software for the purposes described as follows:
2.1 General Use. The Software is licensed and not sold and ClikServ or its suppliers reserve all rights not expressly granted hereunder. You may download the appropriate file from an internet site or by other means, as provided by ClikServ. You may install and Use a copy of the Software on your web server or content server, up to the permitted number of valid internet Domains. The Software may not be shared, installed or used concurrently on different internet Domains. The license granted hereunder is limited to the use of the Software as described herein for making publications available for a self-determined fee, providing the reader a method of donation for publications, providing the reader a method of donation for charities, and providing a method for User to quantify certain information about reader preference.
2.2 Server Use and Distribution.
2.2.1 You may install one copy of the Software within your internal network for the registered domain, for the sole and exclusive purpose of using the Software. Unless otherwise expressly permitted hereunder, no other server or network use of the Software is permitted, including but not limited to use of the Software (i) either directly or through commands, data or instructions from or to another computer or (ii) for internal network, internet or web hosting services.
2.3 No Modification. You may not modify, adapt, translate or create derivative works based upon the Software. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law. Unless otherwise stated in the Customer Order, you may not modify, adapt, translate ClikServ Software to work with other software or hardware components to achieve operability with these components without express prior permission from ClikServ. You may request ClikServ to provide information necessary to achieve such operability. ClikServ has the right to impose reasonable conditions and to request a reasonable fee before providing such information, or any modified code to make operability of the Software with another software program. Any such information supplied by ClikServ and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information should be directed to ClikServ through the methods provided at www.clikserv.com.
2.4 Third Party Website Access. The Software may allow you to access third party websites (“Third Party Sites”). Your access to and use of any Third Party Sites, including any goods, services or information made available from such sites, is governed by the terms and conditions found at each Third Party Site, if any. Third Party Sites are not owned or operated by ClikServ. Any information posted about a Third Party Site is made at your own risk. YOUR USE OF THIRD PARTY SITES IS AT YOUR OWN RISK. CLIKSERV MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD PARTY SITES.
2.5 Payments, Term, and Fees. The Customer Order supplied by ClikServ details the requisite term and payment conditions that the Parties will agree upon. If any conflict arises between this Agreement and the Customer Order the Customer Order will prevail.
3. Restrictions and Confidentiality.
3.1 Confidentiality. This License Agreement, the Software and all information provided in connection therewith shall be treated as confidential information of ClikServ, its suppliers and contracting agents and shall not be disclosed, distributed, disseminated or otherwise transferred to a third party by User. However, if the User and ClikServ already have a non-disclosure agreement or confidentiality agreement in place, the parties will rely on the earlier agreement, unless otherwise agreed to in writing.
3.2 Notices. You shall not copy the Software except as expressly permitted hereunder, or as required by ClikServ for proper usage. Any copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
4. Transfer.
You may not rent, lease, sublicense, assign or transfer your rights in the Software, or authorize all or any portion of the Software to be copied onto another user’s Computer except as may be expressly permitted herein. You may, however, transfer all your rights to Use the Software to another person or legal entity provided that: (a) you also transfer (i) this Agreement, and (ii) the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, to such person or entity, (b) you retain no copies, including backups and copies stored on a Computer, and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally leased the ClikServ Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not for resale copies of the Software.
5. Intellectual Property Ownership, Copyright Protection.
The Software and any authorized copies that you make are the intellectual property of and are owned by ClikServ and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of ClikServ and its suppliers. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by ClikServ and its suppliers.
6. Updates.
If the Software is an Update to a previous version of the Software, you must possess a valid license to such previous version in order to Use such Update. All Updates are provided to you on a license exchange basis. You agree that by Using an Update you voluntarily terminate your right to use any previous version of the Software. As an exception, you may continue to Use previous versions of the Software on your Computer after you Use the Update but only to assist you in the transition to the Update, provided that: (a) the Update and the previous versions are installed on the same computer; (b) the previous versions or copies thereof are not transferred to another party or Computer unless all copies of the Update are also transferred to such party or Computer; and (c) you acknowledge that any obligation ClikServ may have to support the previous versions of the Software may be ended upon availability of the Update.
7. NO WARRANTY.
The Software is being delivered to you “AS IS” and neither ClikServ, its contracting agents, nor any of its suppliers makes any warranty as to its use or performance. ClikServ provides a limited technical support, but it’s employees, contracting agents, or suppliers give no warranties or remedies for the service of the Software or the Software itself. CLIKSERV AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION. CLIKSERV, ANY CONTRACTING AGENTS AND ANY CLIKSERV SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL CLIKSERV, ITS CONTRACTING AGENTS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER, OR ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR ANY LOST PROFITS, LOST SAVINGS OR LOST DATA, EVEN IF A CLIKSERV REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. CLIKSERV’S AGGREGATE LIABILITY AND THAT OF ITS CONTRACTING AGENTS OR ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE LICENSE FEES PAID FOR THE USE OF THE SOFTWARE. CLIKSERV will not be liable for site failure, the failure of the connection between you and ClikServ, any slow down or failure of the internet or your internet connection, any incorrect, libelous or slanderous information about any Third Party Site or any person or entity published by you, any technical issues resulting from Software, any reduced traffic you might have after Using the Software, or any loss of advertisers that might result from your use of the Software. Nothing contained in this Agreement limits ClikServ’s liability to you in the event of death or personal injury resulting from ClikServ’s negligence or for the tort of deceit (fraud). ClikServ is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose.
The provisions of Section 7 and Section 8 shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to Use the Software after termination of this Agreement.
9. Indemnity.
User hereby agrees to indemnify and hold harmless ClikServ and any third-party providers, and their respective affiliates, shareholders, directors, officers, employees, agents, customers, licensors and third party vendors and suppliers from and against any loss, damage, claims, suits, injuries, costs and expenses, including reasonable attorneys’ fees and court costs, arising out of or related to:
(i) Any claim that User has infringed, misappropriated or otherwise violated the rights of any third party;
(ii) Any third-party claim resulting from the use of the Software or the Software services, by User or its agents, employees or contractors, which is not authorized by ClikServ;
(iii) The negligence, gross negligence or willful misconduct of User, including its agents, employees or contractors;
(iv) Any claim made regarding a charity’s 501(c)(3) designation or subsequent or related tax deductions where User designates a charity in which a reader may donate;
(v) Any claim made regarding any incorrect, libelous, slanderous information User or any third party posts or publishes about any third party; and
(vi) Any claim made regarding any loss of traffic or other reduced revenue made by any third party including but not limited to advertisers.
9.2 User’s indemnification obligations under Section 9 will not apply to any claim to the extent the claim directly results from the gross negligence or willful misconduct of ClikServ.
9.3 ClikServ hereby agrees to indemnify and hold harmless User from any third-party claim against User alleging that ClikServ or any subcontractor of ClikServ has willfully misused or knowingly made any unauthorized disclosure of any Confidential information.
9.4 ClikServ hereby agrees to indemnify and hold harmless User from any third-party claim against User for alleging that ClikServ infringed on the Trademarks, Patents, or Copyrights of a third-party.
10. Export Rules.
The Software is subject to United States export jurisdiction and you agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Libya, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
11. Governing Law.
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of Texas. The state and federal courts of Travis County, Texas shall have exclusive jurisdiction over all disputes relating to this Agreement and the parties waive their rights to claim that any other court has jurisdiction. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
12. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified by a writing signed by an authorized officer of ClikServ. Updates may be licensed to you by ClikServ with additional or different terms. This is the entire agreement between ClikServ and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
13. Notice to U.S. Government End Users.
The Software and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
14. Compliance with Licenses.
You agree that upon request from ClikServ or ClikServ’s authorized representative, you will within thirty (30) days fully document and certify that use of any and all Software at the time of the request is in conformity with your valid licenses from ClikServ.
15. Termination.
ClikServ may terminate this Agreement and any licenses granted hereunder if you materially fail to perform or comply with any material provision of this Agreement and continue to do so after ten days notice from ClikServ. If ClikServ incurs costs or attorney’s fees in the enforcement of any provision of this Agreement, you shall be responsible for reimbursing ClikServ for any such reasonable fees.
16. Modification or Amendment.
Modifications to this Agreement may be made by ClikServ at anytime by updating the Terms and/or Program Policies on the ClikServ Website. Customer agrees to monitor such changes and agrees that such modifications and updates are binding on Customer.
17. Headings.
Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
18. Waiver.
Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
19. Severability.
In the event any provision of this Agreement is found invalid by a court of competent jurisdiction, that judgment will not be deemed to affect the validity of any other provision of the Agreement, and the remaining provisions shall remain in full force and effect.
20. Merger.
This Agreement shall not be terminated by the merger or consolidation of ClikServ into or with any other entity.
21. Copyright / Digital Millennium Copyright Act.
The Digital Millennium Copyright Act of 1998 (“DMCA”) provides recourse for copyright owners who believe that their rights under U.S. copyright law have been infringed on the Internet. Under the law, copyright owners who believe that their rights have been infringed by unauthorized use of their protected works appearing online may contact the service provider hosting the material in question, directly or through their authorized agents, and request that the infringing material be removed or access to it disabled. ClikServ takes allegations of copyright infringement very seriously. If you believe in good faith that ClikServ is the hosting service provider of material that infringes your copyright, you may submit a written notification of claimed infringement to ClikServ’s designated agent:
By Mail or Courier:
DMCA Designated Agent
ClikServ, Inc.
13001 Scofield Farms Dr
Austin, TX 78727
By Email: copyright@ClikServ.com
NOTE: No other notices or communications should be sent to the designated agent, who is appointed solely for the purpose of receiving notices of copyright claims under the DMCA. Specific requirements for proper notification of claimed infringement are set forth in the DMCA (see 17 U.S.C. § 512(c)(3)). Valid notification must be a written communication that includes all of the following elements:
i) Signature of copyright owner or person authorized to act on behalf of the owner;
ii) Identification of copyrighted work claimed to be infringed;
iii) Identification of the material claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit the service provider to locate the material;
iv) Information reasonably sufficient to permit the service provider to contact the complaining party (address, phone number and, if available, email address);
v) A statement that the complaining party has a good faith belief that use of the material in the manner complained is not authorized by the copyright owner, its agent, or the law;
vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right allegedly being infringed.
Please be aware that there are substantial penalties for false claims. This information should not be construed as legal advice. ClikServ advises that you seek independent legal counsel before filing a notification. For further information about the DMCA, please visit the Website of the U.S. Copyright Office at: http://www.copyright.gov/onlinesp.
22. Electronic Signature.
Customer acknowledges and agrees that by clicking on the “Submit” button on the Publisher Registration online application form, Customer is a duly authorized signatory, 18 years or older, has all the necessary authority to bind the individual, Customer or entity using the Service under this Agreement and is submitting a legally binding electronic signature and entering into a legally binding contract. Customer also hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
If you have any questions regarding this Agreement or if you wish to request any information from ClikServ please use the address and contact information included herein or via the web at http://www.clikserv.com/contact to contact the ClikServ office.
