End User Software License Agreement
This End User Software License Agreement (“Agreement”) is a legal agreement that grants a software license from gotcha! Mobile Solutions, Inc. (“Licensor”) to the Licensee (either an individual or on behalf of an entity, “Licensee” or “you”). By installing, downloading, or otherwise using the gotcha!Stream™ software in any manner (including, but not limited to, using the product in which the software may be embedded), Licensee agrees to be bound by the terms of this Agreement. If you do not agree, are not at least 18 years of age, or do not have authority to enter into this Agreement, then do not install, download, or otherwise use this software or the product in which it may be embedded. All Section references in this Agreement shall be references to provisions in this Agreement unless explicitly stated otherwise. In consideration of the foregoing and the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:
- DEFINITIONS. As used in the Agreement, these terms shall have the following definitions:
- Agreement shall mean collectivelythe End User Software License Agreement.
- License shall mean any personal, non-exclusive, non-transferrable, non-assignable license or licenses for Licensee’s internal use only granted by Licensor to Licensee to use the Licensed Software under this Agreement.
- Licensed Software shall mean the gotcha!Stream™ content curating service provided by gotcha! Mobile Solutions, Inc.
- Licensee shall mean the party installing, downloading, or otherwise using the software in any manner.
- Licensee Products shall mean those software products of Licensee, if any, that incorporate the Licensed Software.
- Object Code shall mean the binary machine readable version of the Licensed Software.
- Open Source Components shall mean certain portions of the Licensed Software (if any) that are not licensed under the terms of this Agreement, but are instead licensed to Licensee under the applicable open source licenses, such as the BSD License or the Lesser GNU General Public License.
- Source Code shall mean those statements in a computer language, which when processed by a compiler, assembler or interpreter become executable by a computer.
- GRANT OF LICENSE
- Internal Use License. Subject to the terms and conditions of the Agreement and Licensee’s compliance therewith, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable, non-assignable, revocable license to use the Software in object code or in binary code provided, solely for the internal business purposes of Licensee, without any modification, to stream content through Licensee’s website and/or social media pages. Subject to the terms of this Agreement, Licensee may not rent, lease, lend, or distribute the Licensed Software or any portion thereof. This License applies to updates or supplements to the original Licensed Software, unless Licensor provides other terms along with the update or supplement.
- Source Code. The license granted to Licensee hereunder is only to use the Object Code version of the Licensed Software unless otherwise agreed to by Licensor and Licensee. In that case, the Source Code version may only be used by that number of individuals for which Licensee has purchased Single-User licenses for the Source Code as indicated in such an agreement. If applicable, Object Code compiled from Licensee’s use of the Source Code shall be subject to all of the restrictions and limitations on Licensed Software hereunder.
- Open Source Components. Open Source Components (if any), even if supplied in the same electronic file transmission, are not licensed under the terms of this Agreement. Licensor grants Licensee no right to receive source code to any Open Source Component; however, in some cases, rights and access to source code for the Open Source Components may be available directly from gotcha!Stream’s licensors. Upon request, Licensor will identify the Open Source Components and the licenses that apply to them. Licensee’s use of each Open Source Component is subject to the terms and conditions of each applicable license.
- Additional Restrictions.
- The Licensed Software may not be sold, leased, assigned, loaned or otherwise transferred or provided to a third party.
- The Licensed Software may not be modified by Licensee unless Licensee obtains a license to the Source Code version of the Licensed Software in accordance with Section 2.2.
- Licensee is not permitted to make copies of the Licensed Software other than that number of copies which is necessary to exercise Licensee’s rights granted hereunder. Licensee shall maintain a record of the location of all permitted copies.
- The Licensed Software is not designed, intended, or authorized for use in any type of system or application in which the failure of the system or application could create a situation where personal injury or death may occur (e.g., medical systems, life-sustaining or life-saving systems).
- Licensee may not reverse engineer, decompile, modify, or disassemble the Licensed Software. Licensee may not copy the Licensed Software or transfer it to other devices without the express prior written consent of Licensor.
- Documentation License. Licensor hereby grants to Licensee a non-transferable, non-exclusive, world-wide license to use any materials and documentation that Licensor may provide with the Licensed Software (the “Documentation”), if any, solely in connection with Licensee’s authorized use of the Licensed Software.
- Updates, Upgrades, and Support. Licensee acknowledges and agrees that, Licensor is not obligated to make any Updates or Upgrades generally publicly available. “Updates” means any “bug” fixes or error corrections of the Licensed Software or any component thereof. “Upgrades” means minor enhancements to functionality and other minor modifications to the Licensed Software that are not Updates. Licensee further acknowledges and agrees that Licensor may stop (permanently or temporarily) providing the Licensed Software (or any features within the Software) to Licensees at Licensor’s sole discretion, without prior notice. Licensor shall have no obligation to support the Licensed Software.
- Licensor Intellectual Property Rights. Licensee agrees that the Licensed Software and Documentation, including the structure, sequence, and organization of the Licensed Software are proprietary and confidential to Licensor, and Licensee will take all reasonable measures to protect the confidentiality of the Licensed Software and Documentation unless, and to the extent, Licensor makes them available to the public without such restrictions. Licensee further agrees that all right, title and interest in and to the Licensed Software (and all intellectual property rights embodied therein) or any modification or improvement thereof made by Licensor is proprietary to Licensor. All rights therein not expressly granted to Licensee under the Agreement are reserved by Licensor.
- Licensee Intellectual Property Rights. Licensor acknowledges that nothing herein shall grant Licensor any rights in Licensee Products or any intellectual property rights associated therewith.
2.9 Payment. Once Licensee tenders payment to Licensor or its affiliates for use of the Licensed Software, and such payment is received by Licensor, Licensee acknowledges and agrees that such payment will be considered fully earned and Licensee will not be entitled to any refund related to the Licensed Software or this Agreement.
2.10 Export. Licensee agrees not to export or re-export the Licensed Software (or any portions thereof) to any country, person, or entity for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
- LICENSEE’S OBLIGATIONS. Except as expressly set forth in the Agreement otherwise, Licensee agrees not to reproduce, modify, translate or create derivative works of all or any portion of the Licensed Software except as expressly permitted by the Agreement. Licensee further agrees that it shall not make any use of the Licensed Software and Documentation except as specifically permitted by the Agreement.
- WARRANTY DISCLAIMER. The Licensed Software and documentation are provided “as is.” Licensor makes no warranties or representations relating to the licensed software and documentation, express or implied, statutory or otherwise, and expressly excludes the warranty of non-infringement of third-party rights, fitness for a particular purpose or merchantability. Licensor does not warrant that the Licensed Software and documentation will satisfy Licensee’s requirements, that the Licensed Software and documentation is without defect or error or that operation of the Licensed Software will be uninterrupted.
- LIMITATION OF LIABILITY. Licensor shall not be liable for any indirect, incidental, special, or consequential damages, or damages for loss of profits, revenue, data, or use, incurred by Licensee or any third party from the installing, downloading, or useof the licensed software, whether in an action in contract or tort (including negligence), or any other legal theory, even if Licensor has been advised of the possibility of such damages.
- INDEMNIFICATION. Licensee shall indemnify and hold harmless Licensor from and against any claims, demands, or causes of action whatsoever relating to the Agreement, including without limitation those arising on account of Licensee’s use of the Licensed Software or otherwise caused by, or arising out of, or resulting from, the exercise or practice of the license granted hereunder by Licensee, its permitted sublicensees, if any, its subsidiaries or their officers, employees, agents or representatives.
- TERM AND TERMINATION
- Term. The term of the Agreement shall commence on the date Licensee makes payment to Licensor or its affiliates for the Licensed Software, and shall continue in force unless and until terminated in accordance with Section 7.2.
- Termination of Agreement. Licensor may terminate this Agreement at any time and without advance notice, if Licensee has breached any provision of this Agreement, Licensor is required to do so by law, or Licensor decides to no longer provide the Licensed Software or any component thereof.
- Effect of Termination. At the termination or expiration of the Agreement, (a) Licensee must destroy all copies of the Licensed Software; (b) any license granted by the Licensor under this Agreement shall automatically terminate without further notice, and the Licensee shall make no further use of, or carry out any other activity in relation to the Licensed Software; (c) all curated content on Licensee’s website(s) and social media pages shall be revoked and no longer accessible by Licensee. The following terms of the Agreement shall survive any expiration or termination: Sections 1 (Definitions), 2.4 (Additional Restrictions), 2.7 (Licensor Intellectual Property Rights), 2.8 (Licensee Intellectual Property Rights), 2.9 (Payment), 2.10 (Export), 3 (Licensee’s Obligations), 4 (Warranty Disclaimer), 5 (Limitation of Liability), 6 (Indemnification), 7 (Term and Termination), and 8 (General Provisions).
- GENERAL PROVISIONS
- Use of Names. Licensee may use the name “gotcha!Stream™” only in connection with factually based materials related to its use of the Licensed Software. Licensor may use Licensee’s name only in connection with factually based Licensor publicity related to Licensor intellectual property and commercialization activities and achievements.
- Severability. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of the Agreement shall not be affected thereby.
- Headings. The paragraph headings and captions of the Agreement are included merely for convenience of reference and are not to be considered part of, or to be used in interpreting the Agreement and in no way limit or affect any of the contents of the Agreement or its provisions.
- Governing Law. The Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of Texas, without any reference to any conflict of laws principles. Any dispute arising out of or relating to this Agreement shall be subject to the exclusive and mandatory jurisdiction and venue of the courts sitting in Dallas County, Texas, USA. The parties expressly exclude in its entirety the application to the Agreement of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
- Assignment. Licensee shall not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of the Agreement without the prior written consent of Licensor. Any assignment made without Licensor’s consent is void and ineffective.
- Relationship of the Parties. Nothing contained in the Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever. The Agreement confers no rights upon either party except those expressly granted herein.
- Entire Agreement. The Agreement is the complete, entire, final and exclusive statement of the terms and conditions of the agreement between the parties. The Agreement supersedes, and the terms of the Agreement govern, any prior or collateral agreements between the parties with respect to the subject matter hereof. The Agreement may not be modified except in a writing executed by duly authorized representatives of the parties. The terms and conditions of the Agreement shall prevail notwithstanding any variance with the terms and conditions of any other instrument submitted by Licensee. Licensee’s continued use of the Licensed Software shall be deemed consent of the most recent Software terms available at http://gotchastream.com/license.
- U.S. Government End Users. The Licensed Software is a "commercial item," 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 used in 48 C.F.R. 12.212 (Sept. 1995, as amended at 72 F.R. 63049, Nov. 2007) and 48 C.F.R. 227.7202 (Oct. 2011). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405-3 and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Licensed Software with only those rights as set forth herein.
gotcha!Stream™ End User Software License Agreement (July 2018)