Software End User License Agreement
IMPORTANT – READ CAREFULLY. YOUR USE OF ANY DOWNLOADABLE SOFTWARE PRODUCTS, FEATURES OR SERVICES AVAILABLE ON OR THROUGH THE WTX HUB WEBSITE IS CONDITIONED UPON YOUR COMPLIANCE WITH, AND ACCEPTANCE OF, THE FOLLOWING AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE ACCEPT BUTTON OR SIMILAR BUTTONS OR LINKS AS MAY BE DESIGNATED BY WTX HUB TO SHOW THESE TERMS AND/OR TO INSTALL THE SOFTWARE, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. YOU WILL NOT BE PERMITTED TO USE THE SOFTWARE AND THE ASSOCIATED WTX HUB SERVICES UNLESS AND UNTIL YOU ACCEPT THIS AGREEMENT AND ANY OTHER RULES OR POLICIES THAT WTX HUB MAY CREATE AND MAKE AVAILABLE ON THIS WEBSITE FROM TIME TO TIME.
You represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and/or the entity that you purport to represent and you agree your registration data is current, complete, and accurate. This Agreement will commence on the date that you complete the installation of the Software (the “Effective Date”).
1.1 “Content” means any content, including but not limited to photographs, caricatures, illustrations, designs, icons, articles, text, audio clips and video clips.
1.2 “Partner Company” means a company that provides the Software and/or associated WTX Hub services by way of a co-branded or private label website.
1.3 “Software” means WTX Hub’s software downloadable or desktop that is by WTX Hub, including the WTX Hub Mobile Apps, WTX Hub plug-ins and other software of third parties that WTX Hub offers to its Users, which enable Users to create, design, and lay out Content with the Software.
1.4 “User” refers to a person or entity that has downloaded the Software.
1.5 “Website” means the WTX Hub website, currently located at http://www.WTXHub.com.
2. DELIVERY OF SOFTWARE. You will download and install the Software from the Website as specified by WTX Hub. During the term, WTX Hub may, in its sole discretion, notify you that it has released an updated version of the Software (the “Updated Software”). Upon your receipt of such notification, you agree to download the Updated Software and to use the Updated Software instead of the prior version. Any Updated Software will also be considered “Software” for purposes of this Agreement.
3. LICENSE. WTX Hub hereby grants to you a royalty-free, nonexclusive, non-transferable internal use license under copyright to use, display, execute, and perform the Software during the term of this Agreement.
You agree that you will not (a) reproduce, modify, distribute, transfer, disclose, or make available to any third party any portion of the Software (or any related user manuals, documentation, screenshots or prints) in any form; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (c) publish any performance or benchmark tests or analyses relating to the Software or the use thereof. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the jurisdiction where you are located give you the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from WTX Hub and WTX Hub may, in its discretion, either provide such information to you or impose reasonable conditions, including reasonable fees, on such use of the Software to ensure that WTX Hub’s proprietary rights in the Software are protected.
4. USER CONTENT. You represent that the Content that you provide to WTX Hub shall not contain any material (a) protected by copyright, trademark, trade secret, patent or any other intellectual property right without authorization, or (b) that is defamatory, trade libelous, unlawfully threatening or harassing, pornographic, obscene or harmful to minors, or (c) that violates any law or regulation, including without limitation, the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising, and you agree to indemnify and hold WTX Hub and its subsidiaries, affiliates, officers, employees, suppliers, service providers and Partner Companies harmless for any claims, losses, liabilities and expenses arising out of or relating to any breach of this section.
5. SUBMISSIONS. You acknowledge that WTX Hub has no obligation to review the Content that you provide, but that WTX Hub reserves the right to (a) withhold, remove and/or discard User Content in accordance with its then-current User Content Policies and Terms and Conditions, as posted on the Website.
6. TITLE. WTX Hub shall retain all right, title and interest in the Software and in all intellectual property rights therein.
No license or other rights of any kind are granted or conveyed except for the limited internal license expressly provided herein. You shall not offer, loan, transfer, encumber, sell or otherwise dispose of the Software to any third party without having received prior written authorization from WTX Hub. If you do so, the transfer will be deemed void.
7. TERMINATION. This Agreement and the licenses granted hereunder shall terminate immediately if you breach any term or condition hereof. In the event of a termination of this Agreement, (a) those sections that by their nature are intended by the parties to survive shall survive and continue in effect to the extent necessary to protect the rights of the parties, including but not limited to Sections 4, 5, 6, 7, 8, 9, 10, and 11, and (b) you shall cease all use of the Software.
8. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE THAT THE SOFTWARE PROVIDED MAY CONTAIN BUGS AND ERRORS. THE SOFTWARE PROVIDED TO YOU “AS IS” AND ANY USE OF THE SOFTWARE IS AT YOUR OWN RISK. TO THE EXTENT LEGALLY PERMITTED UNDER THE APPLICABLE LAW, WTX HUB DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY. YOU AGREE THAT TO THE EXTENT LEGALLY PERMITTED UNDER THE APPLICABLE LAW, WTX HUB SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU, YOUR CUSTOMERS OR THIRD PARTIES CAUSED BY FAILURE OF THE SOFTWARE TO FUNCTION. IN NO EVENT WILL WTX HUB BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, COST OF SUBSTITUTE GOODS, LOST DATA OR BUSINESS INTERRUPTION) IN CONNECTION WITH THE USE OF THE SOFTWARE OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF WTX HUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF WTX HUB ARISING FROM OR RELATING TO THIS AGREEMENT AND THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD OR OTHER LEGAL THEORY) IS LIMITED TO THE AMOUNTS PAID BY YOU TO WTX HUB DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE WTX HUB’s LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF WTX HUB OR ITS AGENTS OR EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. CONFIDENTIALITY. WTX Hub considers the Software and any technical information, evaluation or reports supplied to you to be proprietary, and you agree to treat the Software as confidential material in a manner no less protective than you use to protect your own similar assets, but in no event will you use less than reasonable care to protect the Software. Except as provided herein, you agree not to permit any third party access to the Software, nor to any materials generated by WTX Hub or you regarding the Software without WTX Hub’s advance written approval.
11. GENERAL PROVISIONS.
11.1 Feedback. In the event that you provide Company with feedback regarding the use, operation or functionality of the Software (“Feedback”), including but not limited to information about operating results, known or suspected bugs, errors or compatibility problems, or desired features, you hereby assign to WTX Hub all rights in the Feedback and agree that WTX Hub shall have the right to use the Feedback and related information in any manner it deems appropriate.
11.2 Governing Law, Venue and Arbitration. This Agreement shall be governed by the laws of England without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You and WTX Hub agree to submit to the jurisdiction of, and agree that venue is proper in, the courts located in England, in such legal action or proceeding. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement may be resolved in a cost effective manner through binding non-appearance-based arbitration, by mutual consent. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. You acknowledge that any breach of this Agreement by you would cause irreparable injury to WTX Hub for which monetary damages would not be an adequate remedy and, therefore, WTX Hub will be entitled to seek injunctive relief (including specific performance) in any court of competent jurisdiction.
11.3 Severability; Language. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The parties of this Agreement have expressly required that the present Agreement be drawn up in the English language.
11.4 No Assignment. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without WTX Hub’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
11.5 Export. You agree not to export, directly or indirectly, the Software, any technical data acquired from WTX Hub, or any products utilizing such data to countries which export may be in violation of export laws or regulations.
11.6 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12. International Provisions. The following provisions shall apply only if you are located in the countries listed below.
12.1 Germany. Notwithstanding anything contrary in Section 9, WTX Hub is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
13. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.