OFFLINE SHARKS LLC
SOFTWARE TERMS OF SERVICE
These Software Terms of Service, (the “Agreement”), constitute a binding contract between OFFLINE SHARKS LLC (the “Company”) and any Person that downloads, installs, accesses or otherwise uses the Software (each, a “User”).
THE COMPANY PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT USER ACCEPTS AND COMPLIES WITH THIS AGREEMENT. BY CLICKING THE “ACCEPT” BUTTON BELOW, AND/OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, USER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF AN INDIVIDUAL, USER IS 18 YEARS OF AGE OR OLDER; AND (II) USER HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND USER TO ITS TERMS. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE COMPANY WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO USER AND USER MUST NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Documentation” means all documentation and other materials related to the Software and provided by the Company, including user manuals, help files and any other instructions, specifications, documents, and materials that describe the functionality, installation, testing, operation, use, maintenance, support, technical features, or requirements of the Software.
“Intellectual Property Rights” means any and all intellectual property or proprietary rights throughout the world, including all: (i) patent rights (including patent applications and disclosures); (ii) registered and unregistered copyrights (including rights in software, including in source code and object code); (iii) registered and unregistered trademark rights; and (iv) trade secret rights.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means the software program used by or in development by or for the Company, and any updates, upgrades, enhancements, releases, improvements, and any other adaptations or modifications made to such software program (which may contain, among other things, error corrections or other changes to the functionality, compatibility, capabilities, performance, efficiency, or quality of such software program), whether or not owned by the Company. The Company is not obligated to update, upgrade, enhance or improve the Software.
2. License Grant and Scope. Subject to and conditioned upon User’s strict compliance with all of the terms and conditions set forth in this Agreement, the Company hereby grants to User a revocable, non-exclusive, non-transferable, non-sublicensable limited license (hereinafter, the “License”) during the Term to use the Software and Documentation, subject to all of the terms and conditions set forth in this Agreement.
3. Third-Party Software. The Software may include software, content, data or other materials, including related documentation, that are owned by persons other than the Company and that are provided to User on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). This License and User’s use of the Software is subject to such Third Party Licenses. User is bound by and shall comply with all Third-Party Licenses.
4. Use Restrictions. User shall treat the Software and Documentation as confidential and proprietary, and shall protect it in the same manner that it protects the confidentiality of its own information. User shall not, directly or indirectly:
a. use (including make any copies of) the Software or Documentation beyond the scope of this License;
b. provide or make available the Software or Documentation to any person or entity other than employees or agents of User who have a need to know consistent with User’s use thereof under this Agreement;
c. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
d. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other Intellectual Property Rights notices from the Software or Documentation, including any copy thereof;
e. except as contemplated by this License, copy the Software or Documentation, in whole or in part;
f. use the Software or Documentation in the operation of a service bureau;
g. use the Software or Documentation in violation of any foreign, federal, state or local law, regulation or rule; or
h. use the Software or Documentation for purposes of the development of a competing software product or service or any other purpose that is to the Company’s commercial disadvantage.
5. Responsibility for Use of Software. User is responsible and liable for all uses of the Software through access thereto provided by User, directly or indirectly. Specifically, and without limiting the generality of the foregoing, User is responsible and liable for all actions and failures to take required actions with respect to the Software by its own users or by any other Person to whom User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
6. Alterations. User is solely responsible for any customizations, updates or other alterations by User to the Software, including any use of the Software in conjunction with any other software program selected by User.
7. Maintenance and Support. This License does not entitle User to any maintenance or support services with respect to the Software unless otherwise agreed by the Company in writing.
8. Collection and Use of Information. User acknowledges that the Company may, directly or indirectly through the services of third parties, collect, use and store information regarding User’s use of the Software to improve the performance of, or develop updates to, the Software.
9. Intellectual Property Rights. User acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to User. User does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the License, and subject to all of the terms, conditions and restrictions under this Agreement. The Company (and its licensors and service providers) reserve and shall retain their entire right, title and interest in and to the Software and Documentation and all Intellectual Property Rights arising out of or relating to the Software and Documentation, except as expressly granted to User in this Agreement. User shall safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. User shall promptly notify the Company if User becomes aware of any infringement of the Company’s Intellectual Property Rights in the Software or Documentation and fully cooperate with the Company in any legal action taken by the Company to enforce its Intellectual Property Rights.
10. Term and Termination.
a. This Agreement and the License shall remain in effect unless terminated as set forth herein (the “Term”).
b. Either party may, upon written notice to the other party, terminate this Agreement for material breach, provided that such material breach is not cured within thirty (30) days following receipt of such notice.
c. Upon termination of this Agreement, the License shall also terminate, and User shall cease using and destroy all copies of the Software and Documentation.
d. Notwithstanding any termination of this Agreement, any provisions of this Agreement which by their terms are intended to survive expiration or termination of this Agreement shall so survive and continue in full force and effect. Any termination of this Agreement shall not affect obligations incurred prior to the effectiveness of such termination.
11. Indemnification. User agrees to indemnify and hold the Company harmless from and against all loss, cost, expense or liability (including reasonable attorney’s fees) arising out of a claim by a third party against User based upon User’s use of the Software, including:
a. Any loss or damages related to, or associated with customizations, updates or alterations by User to the Software; and
b. Any action brought against the Company, its officers, directors, employees, shareholders, legal representatives, agents, successors and assigns based on a claim that the customizations, updates and/or alterations developed by User infringe any intellectual property rights of any third parties.
12. Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. USER SHALL TEST THE SOFTWARE AND RELY UPON ITS OWN DETERMINATIONS IN UTILIZING THE SOFTWARE.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
a. IN NO EVENT WILL THE COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. IN NO EVENT WILL THE COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY ACTIONS OR OMISSIONS OF USER OR ANY OTHER PERSON TO WHOM USER MAY PROVIDE ACCESS TO OR USE OF THE SOFTWARE, INCLUDING ANY USE OF THE SOFTWARE IN VIOLATION OF THIS AGREEMENT OR APPLICABLE LAWS OR REGULATIONS.
c. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID BY USER TO THE COMPANY IN CONSIDERATION FOR THE LICENSE.
a. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Hawaii without giving effect to any choice or conflict of law provision or rule (whether of the State of Hawaii or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Hawaii. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the courts within the Second Circuit on the Island of Maui, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.
b. The relationship between the Company and User established by this Agreement is that of independent contractors. No joint venture or partnership is established by this Agreement. Neither party is the agent, broker, partner, employee, or legal representative of the other for any purpose.
c. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses as may be designated by a party from time to time.
d. This Agreement constitutes the sole and entire agreement between User and the Company with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
e. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the Company’s prior written consent, which consent the Company may give or withhold in its sole discretion. No delegation or other transfer will relieve User of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. The Company may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without User’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
f. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
g. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
h. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
i. For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
j. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.