Viewdle Uploader 1.0

EULA - End User License Agreement

Viewdle, Inc.
End User License Agreement 
IMPORTANT READ CAREFULLY: This End User License Agreement (“Agreement”) is a legal and binding agreement between you (either an individual or a single entity) (“You” or “Your”) and Viewdle, Inc. (“Viewdle”) for the software product You are about to download or otherwise install and the associated proprietary media, printed materials, any associated documentation (including any electronic documentation) (the “Documentation”), and also any updates or modifications of the foregoing provided by Viewdle or its licensees or agents to You (collectively, the “Software”).
WHEN YOU CLICK ON THE “I ACCEPT” BUTTON OR WHEN YOU OTHERWISE INSTALL OR USE ANY PART OF THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, (1) DO NOT INSTALL OR USE ANY PART OF THE SOFTWARE (AND, IF APPLICABLE, CLICK THE “I DO NOT ACCEPT” BUTTON), AND YOU WILL NOT BE AUTHORIZED TO USE OR HAVE ANY LICENSE TO USE ANY PART OF THE SOFTWARE AND (2) IF YOU RETURN THE UNUSED SOFTWARE (INCLUDING ALL RELATED MANUALS AND DOCUMENTATION) AND THE PROOF OF PAYMENT TO THE PLACE YOU OBTAINED THEM WITHIN 30 DAYS OF ACQUIRING THE SOFTWARE, YOU MAY BE ENTITLED TO A FULL REFUND. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF VIEWDLE SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.  IF THESE TERMS ARE CONSIDERED AN OFFER BY VIEWDLE, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. License.
Single User License.  Conditioned on Your compliance with the terms and conditions of this Agreement, Viewdle hereby grants to You a limited, personal, non-sublicensable, non-transferable, non-exclusive, revocable license to:
      (i) use one copy of the Software only for Your personal use on a single computer system and only in accordance with the accompanying Documentation; and
      (ii) make one copy of the Software in machine readable form solely for archival back-up purposes, provided You reproduce Viewdle's copyright proprietary legends in any such copy. 
2. License Restrictions and Special Terms.
(a) You shall not (nor shall You permit anyone else to) directly or indirectly: (i) copy (except as expressly set forth above), modify, or distribute the Software or any portion thereof; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software or any portion thereof (except where the foregoing restrictions are prohibited by applicable local law, and then only to the extent so permitted); (iii) rent, lease, or use the Software or any portion thereof for timesharing or service bureau purposes, or otherwise use or allow the use of the Software or any portion thereof for any commercial purpose or on behalf of any third party; (iv) remove or obscure any proprietary notices on the Software; (v) post or otherwise make available the Software, or any portion thereof, in any form, on the Internet or other publicly-available forum; (vi) distribute copies of the Software to others (electronically or otherwise); (vii) use a previous version of the Software after you receive a new version and are asked to discontinue using the previous version; (viii) export or re-export the Software in violation of any laws or regulations; or (ix) make any single copy of the Software available for use by multiple users over any network or from any remote workstation or terminal.  Each single computer on which Software is installed and used shall be primarily available to only a single user.  You are responsible for all fees and costs associated with the installation of the Software.  As a specific condition of this license, You agree to use the Software in compliance with all applicable laws, including without limitation copyright laws, and that You will not copy, transmit, perform or distribute any audio, video or other content using the Software without obtaining all necessary licenses or permissions from the owner of the content. 
(b) You may only use the Software with content for which you have full ownership or use rights, including without limitation any rights necessary to access content that may be protected by digital rights management (“DRM”) technology. The Software may not function with content that is protected by DRM technology.  Should you use the Software with any content for which you have less than full rights, or that is protected by DRM technology to which you do not have access, you hereby agree to indemnify and hold Viewdle harmless against any and all claims, costs, litigation, or expenses (including reasonable attorneys' fees) which may be brought against Viewdle arising out of or relating to your use of all such content.
(c)  If you use the Software to upload content to any online public or private service, social network, or otherwise to share any content (each, an “Online Service”) and/or tagging people included in such content, including without limitation using the real names of such persons, it is your responsibility to obtain all necessary permissions and releases prior to uploading such content. It is your responsibility to review and abide by the terms and conditions of any such Online Service. You agree to indemnify and hold Viewdle harmless against any claims, costs, litigation, or expenses (including reasonable attorneys' fees) which may be brought (i) against Viewdle arising out of or relating to your use of the Software to upload any content to any Online Service, or (ii) by any Online Service relating to your uploading or using any such content onto such Online Service.
(d)  While the Software seeks to automatically find and tag all instances of a person in your content, Viewdle makes no claim that all instances of such individuals will be tagged in your content, nor that the tags will be correct. It is your responsibility to check to ensure that the Software has tagged individuals correctly and properly, prior to sharing any such content on an Online Service. You agree to release, indemnify, and hold Viewdle harmless against any claims, costs, litigation, or expenses (including reasonable attorneys' fees) which may be brought against Viewdle arising out of or relating to your incorrect tags on any content that you share on an Online Service.
3. Proprietary Rights.
Viewdle and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Software, all copies or portions thereof, and the Viewdle trademarks, and any derivative works thereof (by whomever created).  The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  Notwithstanding anything else, the Software is licensed and not sold.  All rights in the Software not specifically granted in this Agreement are reserved by Viewdle and its licensors.
4. Confidentiality.
You agree to maintain the Software and any data or databases contained therein in confidence and that You will not disclose the Software to any third party without the express written consent of Viewdle.  You may not use the Software except as set forth herein.  You further agree to take all reasonable precautions to preclude access of unauthorized persons to the Software.
5. Term and Termination.
This license is effective until terminated hereunder.  You may terminate the license at any time by destroying the Software (including the Documentation) together with all copies or modifications in any form.  Viewdle will have the right to terminate the license granted herein immediately if You fail to comply with any term or condition of this Agreement. The license granted to You herein will terminate automatically upon any breach of Section 2, 3 or 4. Upon termination of this Agreement for any reason, You shall immediately stop using the Software and shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software.  Sections 2 through 15 shall survive any termination of this Agreement.
6. Limited Warranty.
For a period of ninety (90) days from the date You purchase the Software (the “Warranty Period”), Viewdle warrants only that the Software will perform substantially in accordance with the Documentation. THIS WARRANTY SHALL NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN ABUSED, MISUSED, DAMAGED IN TRANSPORT, ALTERED, NEGLECTED, OR SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, AS REASONABLY DETERMINED BY VIEWDLE.
NOTWITHSTANDING ANYTHING ELSE HEREIN, THE ENTIRE LIABILITY OF VIEWDLE AND ITS LICENSORS, AND YOUR EXCLUSIVE REMEDY FOR A BREACH OF THE FORGOING WARRANTY, SHALL BE, AT VIEWDLE'S OPTION AND EXPENSE: (A) REPAIR OR REPLACEMENT OF THE SOFTWARE FOR SOFTWARE THAT MEETS THE WARRANTY OR (B) IF REPAIRING OR REPLACING THE SOFTWARE IS NOT COMMERCIALLY PRACTICABLE IN VIEWDLE'S SOLE DISCRETION, REFUND OF THE PURCHASE PRICE PAID BY YOU, IN BOTH CASES WHERE THE SOFTWARE IS RETURNED TO VIEWDLE, WITHIN THE WARRANTY PERIOD. 
7. Warranty Disclaimer.
THE LIMITED WARRANTY SET FORTH IN SECTION 7 IS THE ONLY WARRANTY PROVIDED BY VIEWDLE.  EXCEPT FOR THE FOREGOING, THE SOFTWARE AND ANY SERVICES ARE PROVIDED “AS IS” AND VIEWDLE MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SOFTWARE OR ANY SERVICES PROVIDED BY VIEWDLE HEREUNDER.  VIEWDLE EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
FURTHER, VIEWDLE DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED. VIEWDLE AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
8. Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE HEREIN, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL VIEWDLE OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE, OR (II) FOR ANY MATTER BEYOND VIEWDLE'S OR ITS LICENSORS' REASONABLE CONTROL. VIEWDLE'S AND ITS LICENSORS' MAXIMUM LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO (I) THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE VIEWDLE'S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF VIEWDLE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
9. Export.
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and You shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By using the Software, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country.
10. Indemnity.
You shall indemnify and hold harmless Viewdle from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Your use of the Software as well as from Your failure to comply with any term of this Agreement.
11. Government Restricted Rights.
If You are an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. This Software is commercial computer software and the related documentation is commercial computer software documentation. The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto.  Viewdle, Inc. is located at ADDRESS.
12. General.
This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable. The failure of Viewdle to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit Viewdle's rights with respect to such breach or any subsequent breaches. This Agreement is personal to You and may not be assigned or transferred for any reason whatsoever without Viewdle's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Viewdle expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder without Your consent. This Agreement shall be governed by and construed under California law (without regard to its conflicts of laws provisions) as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California; You hereby consent to the personal jurisdiction of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this Agreement.
Questions concerning this Agreement should be sent to the address set forth below.  Any notices or correspondences will only be effective if sent to such address.
Viewdle, Inc.