By using the SiteSwan ("Service"), you are agreeing to be bound by the following terms and conditions ("Terms of Service").
SiteSwan reserves the right to update and change these Terms of Service without notice.
Violation of any of the terms below may result in the termination of your account.
Account / Licensing Terms
1. You understand that SiteSwan is a multimedia internet based platform capable of building, updating and maintaining web pages or web sites; WHEREAS, Licensee desires to utilize the Software Package to develop, maintain, sell and market websites to customers of Licensee (the "End-Users"); and, WHEREAS, Licensor desires to license the Software Package to Licensee and on to End-Users via Licensee's Technology Service; and WHEREAS, Licensor and Licensee mutually desire to set forth the terms applicable to such work.
2. As Licensee, for the Term of your Agreement, you have a limited, non-exclusive, non-transferable right to use the Software Package for the purposes of creating, developing, marketing, selling and maintaining websites for the benefit of the End-Users. The following uses are the only permissible uses (the "Permissible Uses") of the Software Package:
a. Using the Software Package to develop websites for the End-Users;
b. Demonstrating the Technology Service of the Software Package to potential End-Users;
c. Provide training in the use, integration, and implementation of the Technology Service and the Software Package to Licensee's employees, contractors, customers, and End-Users;
d. Using the Software Package to maintain, edit, upgrade, revise or otherwise adjust and amend websites created by End-Users;
e. Allowing End-Users access to the software package so that End-Users may upgrade, revise or otherwise adjust and amend websites created by End-Users;
f. Provide support, training and related assistance to Licensee's employees, contractors, customers, and End-Users;
3. It is expressly understood and agreed that Licensor hereby retains all rights not expressly granted hereunder.
4. You understand Licensor is the exclusive owner of the Software Package and shall retain all rights therein and any Software derived therefrom as well as in the Licensor’s Marks and any and all intellectual property rights relating thereto. This shall include all inventions, discoveries, trademarks, patents, trade names, copyrights, moral rights, know-how, intellectual property, software, shop rights, licenses, developments, research data, designs, technology, trade secrets, test procedures, processes, computer programs, computer discs, computer tapes, literature, reports and other confidential information, intellectual and similarly intangible property rights, whether or not patentable or copyrightable. Licensor retains the absolute right, for any reason, to limit or rescind the license granted herein to the Licensee or to limit, restrict, or otherwise prohibit the licensee from providing access to, or use of, the Software Package to any End User for any reason. The license granted to licensee is non-exclusive and licensor may issue as many licenses to as many other parties as licensor may wish to do. Licensor may terminate the license granted to licensee upon 30-days’ notice to the licensee that the license will be terminated, except that, if any of the following provisions set forth in subsections a through e of this section 1.3, licensor shall be permitted to immediately terminate the license:
a. An End User is engaged in (or plans to engage in by posting on a SiteSwan developed and/or maintained website) any material or content that is illicit, sexually explicit, illegal, discriminatory or in otherwise poor taste.
b. Licensee is engaged in (or plans to engage in by posting on a SiteSwan developed and/or maintained website) any material or content that is illicit, sexually explicit, illegal, discriminatory or in otherwise poor taste.
c. Licensee or an End User attempts or actually does modify, convert, infect with a computer virus, alter, change, steal or otherwise misappropriate any of the Software Package.
d. Any other material breach of this agreement by Licensee.
e. Licensor demands that Licensee refrain from a particular marketing and/or advertising activity and Licensee fails to remedy the situation to the satisfaction of Licensor within 10 days.
5. Licensee shall pay to Licensor, on a monthly basis, a set amount as agreed upon during account creation and is subject to change with 90 days notice.
6. You understand if Licensee shall fail to make timely payment of the fees addressed in section 5 above, Licensee shall have 30-days from the date of default in its payment obligation to pay the amount owed to Licensor in full. If Licensee fails to cure a defect in payment within 30-days, Licensor shall be permitted to contact the End User(s) that contracted with Licensee and inform said End User that the agreement between Licensee and Licensor has been terminated and that their individual website will be terminated within 30-days thereof. The Licensor is free to negotiate and contract with the End User to provide continued support for the End User’s website.
7. You understand that either party is free to terminate the agreement upon 30-days’ notice to the other party. At the end of the first term of one year (and each successive year), the agreement will automatically renew for an additional year and shall continue until either party terminates the agreement upon 30-days’ notice.
8. You understand Licensor hereby reserves the right to modify, change, or alter the Software Package at any time. Licensor also hereby reserves the right to discontinue, terminate or otherwise end distribution of the Software Package, Support Services, or Updates at any time, upon 30 day's written notice to the Licensee.
9. As Licensee you are specifically prohibited and agree that you shall not use any trademark, trade name, trade dress, copyright, company name, corporate name, "doing business as" name, logo, brand, branding or any other media, writing, document, graphic or otherwise that is owned by, or relates in any way to the Licensor or the Licensor’s business (collectively "Licensor’s Identity.") It is expected that the Licensee will have sufficient technical expertise to avoid disclosure or advertisement of the Licensor’s Identity and that the Licensee shall take all steps necessary to avoid the use of Licensor’s Identity in all marketing and advertising materials, as well as on any aspect of the Software Package that is ultimately made available to or is accessibly by the End Users.
10. As Licensee you agree to not undertake, or cause any third-party to undertake on its behalf, any steps toward reverse engineering the Software Package. Licensee will not take any steps to expose or otherwise obtain or copy the underlying Source Code of the Software Package.
11. You understand that "Confidential Information" as used in this Agreement shall mean any and all technical and non-technical information of a party (the "Disclosing Party") to this Agreement (including, without limitation, trademarks, patents, copyrights and works of authorship, trade secrets, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, and software source documents) related to the current, future and proposed business, products and services of such party, and its suppliers and customers, and includes, without limitation, information concerning development, design details and specifications, engineering, customer lists, business forecasts, sales, and marketing plans and any other similar information or data which is disclosed to the other party (the "Receiving Party") or to which the Receiving Party otherwise gains access as a result of performing under this Agreement. "Confidential Information" also includes proprietary or confidential information of any third party that may disclose such information to the Disclosing Party in the course of the Disclosing Party's business. "Confidential Information" also specifically includes the Software Package as defined above in this agreement, together with any source code included therein to which the Receiving Party becomes aware at any time.
12. The Receiving Party agrees not to use the Confidential Information of the Disclosing Party for any purpose except to the extent necessary to fulfill its obligations under this Agreement. The Receiving Party agrees not to copy, alter, modify, disassemble, reverse engineer or decompile any of the materials comprising Confidential Information, unless permitted in writing by the Disclosing Party. The Receiving Party agrees not to disclose the Confidential Information to any third parties or to any of its employees, contractors or agents. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party's Confidential Information to the extent required by a valid order of a court or other governmental body or by applicable law and to its attorneys, financial advisers, lawyers or accountants; provided, however, that the Receiving Party will notify the Disclosing Party of the obligation to make such disclosure in advance so that the Disclosing Party will have a reasonable opportunity to object to such disclosure. The Receiving Party agrees that it shall treat the Confidential Information with the utmost care and will take all reasonable and prudent steps to guard the Confidential Information from disclosure to any third-party, including any End Users. The Receiving Party agrees to advise the Disclosing Party in writing of any misappropriation or misuse by any person (including any End User) of the Disclosing Party's Confidential Information of which the Receiving Party may become aware. Any Confidential Information furnished to the Receiving Party shall be returned or deleted, promptly at the end of the term of this agreement.
13. You understand that The Licensor and Licensee are separate and distinct entities and neither party has any control over the actions of the other. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
14. You understand that from time to time, this Agreement may be modified or amended by Licensor and shall be done so only by a change in these Terms. Any aspect of this agreement may be modified in this manner, including modification of pricing schedules, features offered in the Software Package, Services offered by the Licensor, legal provisions of this agreement and any other aspect of this agreement that may require modification from time to time. Each acceptance of the new or revised terms and conditions set forth by the Licensor and agreed to by the Licensee (by clicking on the "I agree" button), shall constitute a new and binding agreement between Licensor and Licensee and both Licensor and Licensee shall be bound by the new terms contained in the new or revised agreement.
15. You agree that as a Licensee, you may not assign to any third-party any of its rights or obligations set forth under this agreement.
16. You understand that the failure of any party hereto to enforce any provision of this Agreement, or any right with respect hereto, or failure to exercise any election provided for herein, shall in no way be considered a waiver of such provision, right, or election, or in any way affect the validity of this Agreement. The failure of any party hereto to enforce any provision, right or election shall not prejudice such party from later enforcing or exercising that provision, right, or election which it has under this Agreement.
17. You understand that this Agreement will be governed by the laws of the State of New York without regard to its conflicts of law provisions, provided that matters affecting copyrights, patents and/or trademarks will be governed by U.S. federal law. The parties agree to the Supreme Court of Nassau County as the proper venue for any disputes arising between the parties.
18. You understand that the performance of this Agreement, or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.
19. You understand that the Licensor has absolute discretion to remove, restrict, dismantle or block any material that it deems to be inappropriate, indecent, in poor taste, pornographic and/or may violate any law (including copyright, trademark or patent). Licensee warrants that it will take reasonable and diligent steps to ensure that any content placed on an End User’s site is not inappropriate, indecent, in poor taste, pornographic and/or may violate any law (including copyright, trademark or patent).
20. You understand that this Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
21. As the Licensee, you agree to notify Licensor promptly in the event Licensee becomes aware of any infringements (within 72-hours) of the Software Package by an End User. Licensor shall have the right, in its sole discretion, to prosecute lawsuits against third persons for infringement (including End Users) of Licensor's rights in the Software Package.
22. You understand that The Licensor, in its sole discretion, may terminate or "ban" an End User from using the Software Package.
23. You understand that if this Agreement is terminated as a result of a breach of its terms and conditions by Licensee, Licensee shall immediately cease all marketing, advertising, promotion, distribution and/or use of the Software Package and shall require all End Users to do the same.
24. You understand the LIMITATION OF LIABILITY AS DESCRIBED HERE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE PACKAGE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR EXPRESSLY DISCLAIMS ALL LIABILITY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ARISING OUT OF ANY CYBER OR DATA BREACH IMPACTING THE SOFTWARE PACKAGE OR ANY SYSTEM UTILIZED BY THE END USERS OR LICENSEES IN CONNECTION WITH THE SOFTWARE PACKAGE. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE PRODUCT DURING THE PRIOR 3 MONTH PERIOD.
25. You understand our policy about warranties, as explained here. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PACKAGE IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR AND LICENSOR'S AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PACKAGE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH LICENSEE'S OR END-USER'S ENJOYMENT OF THE SOFTWARE PACKAGE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PACKAGE WILL MEET LICENSEE'S OR THE END-USER'S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE PACKAGE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PACKAGE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR A LICENSOR-AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PACKAGE PROVE DEFECTIVE, LICENSOR IS NOT RESPONSIBLE FOR ANY REVENUE LOST BY LICENSEE OR END USERS FOR DEFECTS IN THE SOFTWARE PACKAGE OR FOR THE FAILURE OF THE SOFTWARE PACKAGE (AND ANY END USER WEBSITE) TO BE AVAILABLE FOR VIEWING ONLINE.
26. As the Licensee you agree to defend, indemnify, and hold Licensor, and its officers, directors, agents, and employees, harmless against all costs, expenses and losses (including reasonable attorney's fees and costs) incurred through claims of third parties (or End Users) against Licensor based on (i) Licensee's breach of any representations or warranties contained herein or (ii) as a result of Licensee's use or misuse of the Service.
27. You understand that each Party represents and warrants that:
a. Such Party has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required hereunder.
b. The execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound.
c. Such Party's materials will neither infringe on any trademark, copyright, U.S. patent or any other third party right nor violate any applicable law or regulation.
d. Such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for under this agreement.
28. You agree that in the event of any termination of this Agreement, all obligations and responsibilities of Licensee prior to the termination shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties and their legal representatives, heirs, successors, and assigned. The termination of any provision of this Agreement shall not excuse a prior breach of that provision.
29. You agree that if any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.
30. You agree that this Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as the final expression of their Agreement.
31. Questions about the Terms of Service should be sent to info@siteswan.com
Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes.
