End-User License Agreement
Version Date: January 1, 2018
This End-User License Agreement (this “Agreement”) is a legal contract between you, as either an individual or a single business entity (“user” or “you”), and ONeil Interactive, Inc. and its affiliates (collectively, “Company” or “we” or “us” or “our”).
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR INSTALLING COMPANY’S PROPRIETARY HOME LISTING DATA MANAGEMENT SOFTWARE KNOWN AS BUILDER WEBPRESS (THE “SOFTWARE”) OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE. THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT AND IS NOT SOLD TO YOU. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD TERMINATE THE DOWNLOAD OR INSTALLATION PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT, INCLUDING ANY DOCUMENTS REFERENCED IN THIS AGREEMENT, REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND COMPANY CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH COMPANY RELATING TO THE SOFTWARE UNLESS YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT SIGNED BY COMPANY THAT EXPRESSLY AMENDS THIS AGREEMENT.
1.1. Grant of License.
Company hereby grants to you, and you accept, a perpetual, limited, nonexclusive, non-transferable license to use the Software in machine-readable, object code form only, and the user documentation accompanying the Software (the “Documentation”), only as authorized in this Agreement, and subject to compliance with the terms of this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made available to you by Company. Notwithstanding the foregoing, Company shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
1.2. WordPress; Scope of Use.
The Software operates as a plugin for WordPress websites. Accordingly, you will need to have an active WordPress instance in order to utilize the Software. You may use the Software only on a single WordPress website. For additional WordPress websites, you will need to download additional copies of the Software. For purposes of this Agreement, “use” of the Software includes loading the Software onto a WordPress website.
While we intend that the Software will be compatible at all times with WordPress, we have no obligation to maintain such compatibility, or to update the Software for subsequent versions of WordPress. You are not permitted to utilize the Software other than as a plugin for a WordPress website.
1.3. Builder WebPress Service Terms.
When you download the Software, you will also be requested to accept the Builder WebPress Service Terms (located at http://builderwebpress.org/service-terms/). The Builder WebPress Service Terms describe certain interactivity and data sharing that will automatically occur between the Software and Company’s Homefiniti site located at www.homefiniti.com. You acknowledge that you have read, understand and accept the terms contained in the Builder WebPress Service Terms.
1.4. Restrictions, Copies and Modifications.
You may not reverse engineer, decompile, disassemble, or otherwise translate the Software you have obtained. You may not modify or adapt the Software that you have obtained in any way. You may make one copy of the Software and the Documentation that you have obtained solely for backup or archival purposes. Any such copies of the Software and Documentation shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software or Documentation, or any portions thereof, may be made or distributed by you or any person under your authority or control. You may not allow third party use of the Software (except for use that is solely performed on your behalf) or use of the Software as a service bureau.
1.5. Assignment of Rights.
You will not sublicense, lease, rent, or lend your rights in the Software or Documentation, as granted by this Agreement, to any party without prior written consent of Company.
2. Intellectual Property Protection and Confidentiality.
2.1. Use Reporting, License Violations and Remedies.
Company reserves the right to gather data including server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. Any unauthorized use shall be considered by Company to be a violation of this Agreement.
2.2. Proprietary Rights to Software and Trademarks.
You acknowledge that the Software and the Documentation are proprietary to Company, and the Software and Documentation are protected under United States copyright law and international treaties. You further acknowledge and agree that, as between you and Company, Company owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that Company uses in connection with the Software or with services rendered by Company are marks owned by Company. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
You shall permit only authorized users to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software or Documentation to any third party. You will use your best efforts to cooperate with and assist Company in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.
3. License Fees.
The Software is currently available for free. Company may in its discretion decide to charge for the Software at any time, provided that the version of the Software then in your possession will remain licensed to you at no charge. However, in the future, upon prior notice and agreement, you may be charged for updates, enhancements, modifications, revisions, or additions to the Software. You shall, in addition to license fees, if payable by you, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of your purchase and use of the Software, excluding income taxes on the net profits of Company.
4. Software Maintenance and Support Services.
Company may provide maintenance and support for the Software in its discretion. Please refer to the Company website located at www.BuilderWebPress.org for more information on available maintenance and support.
5. Term and Termination.
This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, or using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. You may terminate this Agreement at any time by: (i) providing written notice of your decision to terminate the Agreement to Company and (ii) either returning the Software, Documentation, and all copies thereof that you have obtained to Company or destroying all such materials and providing written verification of such destruction to Company. Company may terminate this Agreement if you breach any term of this Agreement by giving you written notice of your breach and Company’s decision to terminate the Agreement. Upon termination of this Agreement, you agree to either return to Company the Software, Documentation, and all copies thereof that you have obtained, or to destroy all such materials and provide written verification of such destruction to Company.
6. Warranty Disclaimer.
YOU AGREE THAT YOUR USE OF THE SOFTWARE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SOFTWARE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SOFTWARE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF THE SOFTWARE, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SOFTWARE, (C) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE BY ANY THIRD PARTY, AND/OR (D) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SOFTWARE.
7. Limitation of Liability.
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SOFTWARE DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION ARISING, OR $10, WHICHEVER IS GREATER.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement or the Software shall be governed and construed by the law of Maryland, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Company arising out of or related in any respect to this Agreement or the Software shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Baltimore County, State of Maryland; subject, however, to the right of Company, at the Company’s sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. You hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by you related in any way to this Agreement or the Software be instituted more than two (2) years after the cause of action arose. You will be liable for any attorneys’ fees and costs if we have to take any legal action to enforce this Agreement.
You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your breach of this Agreement and/or any breach of your representations and warranties set forth above. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
10. Electronic Contracting.
Your use of the Software includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE SOFTWARE, INCLUDING NOTICES OF CANCELLATION. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
11. Entire Agreement.
This Agreement constitutes the entire agreement between you and Company regarding the use of the Software.
12. Force Majeure.
Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company’s reasonable control.
If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
16. No Waiver; Amendments.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Amendments to the Agreement shall only be effective if in writing and signed by all parties.
You may not assign your rights under this Agreement and any attempted assignment shall be void and of no effect. Company may assign its rights and obligations under this Agreement.
18. United States Government Restricted Rights.
The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.
19. Export Restrictions.
THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR DOCUMENTATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. YOU SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF COMPANY AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.