This is a binding legal document. It gives you certain rights and imposes certain obligations on you. Please read it carefully!
THIS SOFTWARE IS LICENSED, NOT SOLD. BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO INSTALL, COPY, OR USE THE SOFTWARE. IF YOU REJECT THE TERMS OF THIS AGREEMENT WITHIN 30 DAYS AFTER YOUR PURCHASE, YOU MAY CALL (713) 876-6095 TO REQUEST A FULL REFUND OF THE PURCHASE PRICE.
For purposes of this Agreement, the following terms have these meanings:
A. "Agreement" or "License Agreement" means this agreement.
B. "Cereblitz" means Cereblitz LLC.
C. "Customer" means any person or entity whom you allow or permit to place an order for goods or services using the Software.
D. "Developer License" means a Site License, as Site License is defined below, that is restricted to use by developers of plugin, extension, or add-on software.
E. "Evaluation License" means a temporary Site License, as Site License is defined below.
F. "Included Libraries" means software delivered with the Cereblitz Cart software but not developed by Cereblitz LLC. It includes, but is not necessarily limited to, jQuery, jQueryUI, TinyMCE, and the Stripe API for PHP. No file containing a copyright notice mentioning Cereblitz, such as "(c) 2014 Cereblitz LLC," is an Included Library.
G. "Marketplace" means a Website through which more than one vendor can do any of the following: (1) list goods for sale or advertise services, (2) accept orders for goods or services, (3) create or modify separate storefronts, (4) provide customer or client service in any manner, (5) create or modify categories of goods or services, or (6) receive any payment that does not first pass through an account held, controlled, or operated by the Website's owner or primary operator.
H. "Second-level domain" means a domain name one level below a top-level domain. By way of example, "cereblitz.com", "yoursite.us", and "yourstore.biz" are all second-level domains.
I. "Site License" means either a permanent or periodic subscription to use the Software, as further defined below.
J. "Software" means the Cereblitz Cart software, as well as all plugins, modules, interfaces, and themes delivered with it. It does not include Third-Party Software as defined below. The term Software includes the definition, structure, indexes, constraints, and relations within or amongst all database schemas defined or created by the Software, including but not limited to any MySQL databases, tables, views, functions, procedures, or triggers defined or created by the Software.
K. "Third-Party Software" means software developed by persons other than Cereblitz. It includes, but is not limited to, Included Libraries, MySQL, PHP, Apache, and various flavors of the Linux operating system.
L. "Top-level domain" or "TLD" means a domain at the highest level of the internet domain name system, or DNS. By way of example, ".com", ".net", ".us", ".cc", ".info", and ".biz" are all top-level domains.
M. "Website" means one or more uniform resource locators (URLs) available through a fully-qualified domain name, such as yoursite.com, www.yoursite.com, store.yoursite.com, or my.store.yoursite.com.
Two or more fully-qualified domain names constitute a single Website if all such fully-qualified domain names are (i) part of the same top-level domain (TLD) and (ii) are used by the same vendor to sell the same or substantially the same products and services.
a. By way of example, yoursite.com, goods.yoursite.com, and services.yoursite.com all constitute one Website if they are all controlled by the same vendor and all sell that vendor's goods and services related to those goods.
b. By way of further example, if you operate a bookstore and a music store under two different fully-qualified domain names, then those fully-qualified domain names represent two Websites.
N. "You" means you, the person or entity licensing the software. As used in this Agreement, "you" also includes your employees, agents, contractors, representatives, and assignees.
The Software, along with any files delivered to you by Cereblitz via internet download or otherwise, is copyrighted work of Cereblitz. Any and all uses of the Software are governed by the terms of this License Agreement. By downloading, installing, or using the Software for any purpose, including but not limited to running a store, managing a Website, evaluating the Software, or developing plugins, add-ons, or extensions, you agree to this License Agreement.
To use the Software, you must obtain a Site License. A Site License may be designated as a Developer License or an Evaluation License, or it may be designated only as a Site License. Site Licenses, including Developer Licenses and Evaluation License, may be temporary, permanent, or periodic. A Site License that is designated as temporary or periodic - whether annual, quarterly, monthly, or limited to any other time period - expires at the end of the specified period unless renewed. Upon expiration of a Site License, you must immediately cease using the Software for any purposes whatsoever.
A Developer License may only be used for development of plugins, add-ons, extensions, or suggested patches to the Software. A Developer License may not be used to install or run the software on a Website available to the public or to any Customers.
An Evaluation License may be used for any purposes permitted by is limited to the time period specified at the time at which you obtain the Evaluation License. If no such time is specified, an Evaluation License expires 45 days after it is issued. In no circumstances will an Evaluation License be valid for more than 45 days unless a longer term is specified in writing by Cereblitz.
A Site License that is not designated as a Developer License or an Evaluation License may be used on 1 Website available to Customers, whether members of the general public or restricted in any manner.
Nothing in this Agreement shall prevent Cereblitz from issuing licenses on terms other than those contained herein, but any such license must be issued by separate written agreement and will be subject to the terms of this Agreement to the extent that its terms do not contradict this Agreement.
Any use, reproduction, modification, or distribution of the Software not expressly authorized by the terms of this Agreement is expressly prohibited.
If you agree to all terms of this Agreement and have obtained a Site License, Cereblitz hereby grants, and you hereby accept, a limited, non-exclusive license to install and use the Software as specified in this Agreement. This license is subject to your agreement to and continuing compliance with this Agreement. Unless otherwise specified by your Site License, you may download, install, and run the Software on 1 computer in accordance with the limitations specified in section 3 of this Agreement. You may also download and install the Software on 1 backup, standby, or substitute server, provided that you may only run the Software or make it publicly available on at most 1 computer at a time. You may not run the Software or make it publicly available in a load-balanced, cloud, or cluster configuration unless your Site License explicitly permits you to do so. You may make an unlimited number of copies of the Software for archival or backup purposes.
Except as expressly authorized herein, you may not:
A. Distribute, sublicense, disclose, market, rent, lease, or transfer the Software to any third party, or permit any person or entity to have access to the Software by means of a time-sharing, remote computing, networking, batch processing, service bureau, or time-sharing arrangement.
B. Export the Software in violation of U.S. Department of Commerce export regulations. The Software may not be re-exported, downloaded, or otherwise exported or imported into any country against which the U.S. Government maintains comprehensive economic sanctions or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Denied Persons List or Entity List. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
C. Import or export the Software in violation of any law or regulation to which you are subject.
D. Use the Software to sell, advertise, distribute, deliver, or license any of the following goods or services or access to the same:
Sexually-explicit images, video, or sounds.
Requests for or offers of sexual favors or activities.
E. Use the Software to host any Website in the top-level domain .xxx.
F. Make any copy, photocopy, reproduction, modification, or derivative work based on the Software or any part thereof.
G. Translate the Software or any part thereof.
H. Reverse engineer, disable, or circumvent any portion of the Software or assist anyone in taking such an action.
I. Take any action to prevent the Software from validating a Site License or disabling an expired Site License or assist anyone in taking such an action.
J. Provide any code, software, or information to anyone for the purposes of allowing use of the Software without a valid Site License.
K. Modify or cause to be modified any files that are part of the Software with the exception of (1) a single cc-config.php file and (2) files that you cause to be modified solely through actions that you take in interacting with a running instance of the Software.
L. Create, run, or operate a Marketplace using the Software or permit anyone other than you to sell or advertise goods or services using the Software.
M. Disclose any bug, security vulnerability, or security breach in or attributable to the Software except in compliance with the requirements of this Agreement or as required by law.
Any violation of this section shall constitute a material breach of this Agreement and entitle Cereblitz to all remedies available under this Agreement or otherwise available in equity or law, including but not limited to temporary or permanent injunctive relief. You agree that, as between you and Cereblitz, Cereblitz shall have the exclusive power to determine violations of this section.
A. Cereblitz owns and may obtain in the future copyrights, trademarks, trade names, service marks, or patents in the Software. All title, ownership rights, and intellectual property rights in and to the Software and all copies thereof (including without limitation any titles, computer code, themes, objects, dialog, libraries, classes, functions, constants, database schemas, database table structures, database views, database functions, database procedures, database constraints, database triggers, images, sounds, videos, and Third-Party Software) are owned or licensed by Cereblitz. The Software is protected by the copyright laws of the United States, international treaties and conventions, and other laws. The Software may contain materials licensed by third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. Except as expressly provided herein, this Agreement does not grant or convey to you any license, right, or interest in any Cereblitz copyright, trademark, trade name, service mark, or patent.
B. If you agree to all terms of this Agreement and have obtained a Site License, Cereblitz hereby grants, and you hereby accept, a limited, non-exclusive license to use Cereblitz's logo, trade names, trade marks, and service marks by stating on any Website or portion thereof that you are a licensed user of the Software or that you operate a store or Website using the Software; provided, however, that Cereblitz reserves the right to terminate this license for any reason or no reason. If you use a Cereblitz logo, you agree to abide by Cereblitz's Terms and Conditions of Logo or Trademark Use, if such a document has been published on the Website at cereblitz.com. Nothing in this section shall require you to exercise any rights under this license.
C. If you agree to all terms of this Agreement and have obtained a Site License, you hereby grant, and Cereblitz accepts, a limited, non-exclusive license to use your logo, trade names, trade marks, and service marks for the purpose of stating that you are a a licensed user of the Software or that you operate a store or Website using the Software; provided, however, that if you inform Cereblitz of any restrictions or preferences regarding the format, coloration, or layout of your logo or marks, Cereblitz will make commercially reasonable efforts to accommodate such restrictions or preferences. Nothing in this section shall require Cereblitz to exercise any rights under this license.
A. You may permanently transfer all of your rights and obligations under the Agreement to another only by transferring all copies of the Software and all manuals or other documentation distributed with the Software to the recipient; provided, however, that the following conditions must be satisfied: (1) you must permanently delete all copies and installations of the Software in your possession or control, (2) the recipient must agree to the terms of this Agreement, and (3) the recipient may only use or install the Software subject to a Site License, which the recipient must acquire directly from Cereblitz. You, and not Cereblitz, agree to be solely responsible for any taxes, fees, charges, duties, withholdings, assessments, and the like, together with any interest, penalties, and additions imposed in connection with such transfer. You acknowledge and agree that you have no interest, monetary or otherwise, in any feature or content contained in the Software.
B. You may not assign, transfer, sell, or lease a Site License without the written permission of Cereblitz.
The Software may contain additional software, files, or features for which you do not have a license (the "Locked Software"). You agree that Cereblitz may install the Locked Software onto your hard drive during the Software installation process. You also agree that you will not access, use, distribute, copy, display, reverse engineer, derive source code from, modify, disassemble, decompile, or create any derivative works based on the Locked Software, unless and until you receive from Cereblitz a license to use that software. If you receive a license from Cereblitz, you may only unlock those portions of a single copy of the Locked Software for which you received a license. If an End User License Agreement is displayed after the Locked Software is unlocked, the terms of that agreement will replace and supersede this Agreement, but only with regard to the Locked Software for which you receive a license. Notwithstanding anything to the contrary herein, you may make unlimited copies of the Locked Software for archival purposes only.
A. The Software may automatically report bugs, errors, attempted security breaches, and other information to Cereblitz or to third-party services used by Cereblitz, including but not limited to bug-tracking services. You hereby consent to such reports and grant Cereblitz a non-exclusive license to use any such information for the limited purposes of resolving bugs, errors, or security vulnerabilities, preventing or mitigating security breaches, or improving the functionality of the Software. You hereby agree that Cereblitz may disclose information contained in such reports to third parties, including other users of the Software, for these purposes and subject to the terms of this Agreement; provided, however, that Cereblitz will not disclose any information that is identifiable to such third parties as originating with you or that would disclose to such third parties your name, identity, or financial information or that of any user of a Website that you operate. By way of example, the information that Cereblitz may disclose includes a partial URL, excluding the domain name, that indicates an attempted or actual security breach, the internet protocol address (also known as an "IP address") of persons requesting such URLs, or other information indicative of the mode or manner and success or failure of an attempted or actual security breach.
B. The Software may periodically check for updates to the Software or themes, plugins, extensions, add-ons, or Third-Party Software used by or incorporated into the Software. You consent to such checks. You hereby agree that the Software may communicate to Cereblitz information necessary to determine whether updates are available, including but not limited to the version of the Software that you have installed; the operating system and hardware specifications of the computer on which you are running the software; and the installed version of any other installed software, including but not limited to operating system components, PHP, MySQL, and OpenSSL. You hereby consent that the Software may download and install or cause to be downloaded and installed patches, updates, or modifications to the Software without notification to you, that such patches, updates, or modifications shall be considered part of the Software for purposes of this Agreement, and that your continued use of the Software is subject to your acceptance and use of such patches, updates, and modifications.
C. The Software may periodically validate your Site License by transmitting information to Cereblitz. You hereby consent to such validation. IF THE SOFTWARE DETERMINES THAT YOUR USE OF THE SOFTWARE VIOLATES THIS AGREEMENT, IT MAY (1) COMMUNICATE INFORMATION TO CEREBLITZ, INCLUDING WITHOUT LIMITATION YOUR LICENSE KEY, DETAILS ABOUT UNAUTHORIZED PRODUCTS OR SERVICES, AND THE TIME AND DATE, AND (2) EXERCISE AUTOMATICALLY ALL RIGHTS AVAILABLE TO CEREBLITZ UNDER THIS AGREEMENT, INCLUDING TERMINATION OF ANY SITE LICENSE AND DISABLING OR DELETING THE SOFTWARE FROM YOUR COMPUTER, WITH OR WITHOUT PRIOR NOTICE TO YOU.
This Agreement is effective until terminated. You may terminate the Agreement at any time by (i) permanently destroying all copies of the Software in your possession or control; (ii) removing the Software from all computers in your possession or control; and (iii) notifying Cereblitz of your intention to terminate this Agreement. Cereblitz may terminate this Agreement at any time for any reason or no reason. Upon termination, all licenses granted herein and all Site Licenses that you hold shall immediately terminate and you must immediately and permanently destroy all copies of the Software in your possession and control and remove the Software from all computers in your possession or control.
Cereblitz warrants for a single period of 90 days from the date on which you download or receive the Software that the Software, as delivered, will in all material respects perform the functions described in the specification provided with the Software. In the event that the Software does not, in all material respects, perform the functions described therein, and you report to Cereblitz within the warranty period the manner in which the Software does not perform the functions described therein, Cereblitz will, at its option, (i) undertake to correct the error, (ii) provide a product of equivalent value, or (iii) refund the unused portion of the purchase price that you have paid for any Site License valid on or after the date on which you notified Cereblitz of the error. The remedy selected by Cereblitz from those listed in this paragraph shall be Cereblitz's entire liability and your entire remedy for breach of this warranty. Cereblitz does not warrant that the Software will meet your requirements, that the Software will operate in the combination or hardware or software environment which you may select for use, that the operation of the Software will be uninterrupted or error-free, or that all error conditions will be corrected. EXCEPT AS PROVIDED IN THIS SECTION ALL SOFTWARE PROVIDED HEREUNDER IS PROVIDED "AS IS".
THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 11 ARE THE ONLY WARRANTIES MADE BY CEREBLITZ WITH RESPECT TO THE SOFTWARE. CEREBLITZ MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, MAKES NO WARRANTY OF TITLE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. CEREBLITZ'S EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED, OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, CEREBLITZ RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE SOFTWARE.
NEITHER CEREBLITZ NOR ITS SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE SOFTWARE OR ANY USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES. FURTHER, NEITHER CEREBLITZ NOR ITS SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE TO ELECTRONIC OR VIRTUAL GOODS (E.G., SOFTWARE, THEMES, PLUGINS, ETC.) OR DATA OF ANY KIND STORED BY THE SOFTWARE OR BY CEREBLITZ. CEREBLITZ SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE, INCLUDING WITHOUT LIMITATION INTERNET SERVICE PROVIDER DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL CEREBLITZ BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL CEREBLITZ'S LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY YOU TO CEREBLITZ DURING THE 6 MONTHS IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE.
A. YOU HEREBY AGREE TO DEFEND, INDEMNIFY, AND HOLD CEREBLITZ HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY, LOSS, INJURY, DAMAGE, COST, OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED BY CEREBLITZ ARISING OUT OF, IN CONNECTION WITH, OR ATTRIBUTABLE TO YOUR USE OF THE SOFTWARE.
B. Subject to the limitations in Sections 11 and 12 of this Agreement, Cereblitz shall indemnify and defend you against any claims by a third party that the Software or your reproduction or use thereof directly infringes upon such third party's United States patent or copyright, provided that you have complied with all requirements imposed by this section. You must provide Cereblitz with prompt notice of any claim that the Software infringes any intellectual property rights and provide Cereblitz with all information and assistance that it requests with respect to any such claim. You hereby grant Cereblitz sole and complete authority to defend or settle any and all such claims, and, to the extent necessary, authorize it to act as your attorney-in-fact for that purpose. In the event that a court holds, or if Cereblitz believes that a court may hold, that the Software infringes the intellectual property rights of any third party, Cereblitz may, but is not obligated to, at its sole discretion do any of the following: (i) obtain for you a right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing while providing substantially equivalent performance, or (iii) accept return of the Software, terminate this Agreement, and refund to you the portion of any fees paid to Cereblitz for use of the Software that you were unable to enjoy due to the early termination by Cereblitz. Cereblitz shall have no obligation or liability under this Agreement to the extent that any alleged infringement is based on (i) a modification or derivative work of the Software developed by anyone other than Cereblitz, (ii) a plugin, add-on, extension, or theme developed by anyone other than Cereblitz, (iii) a combination of the Software with any product or service not provided by Cereblitz, (iv) use of the Software other than in accordance with this Agreement or documentation accompanying the Software or published on cereblitz.com, (v) indirect or willful infringement, or (vi) any code that is "open source" or licensed under any variant of the BSD License, GNU General Public License, GNU Lesser General Public License, MIT License, or any Creative Commons license, or in the public domain. This section states Cereblitz's entire liability and your exclusive remedy for any alleged infringement of a third party's intellectual property or other rights by the Software.
You hereby agree that any breach of this Agreement by you will result in irreparable harm to Cereblitz and therefore further agree that Cereblitz shall be entitled, without bond, other security, or proof of damages, to specific performance of this Agreement and all other appropriate equitable remedies with respect to breaches of this Agreement, in addition to any other remedies that Cereblitz may have available to it in law or equity. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys' fees, and other expenses incurred by such prevailing party in the litigation.
Cereblitz may replace or modify this Agreement from time to time for any reason or no reason. This Agreement will terminate immediately upon the introduction of a new or modified Agreement, and you will be given an opportunity to review and accept the new or modified Agreement. If you accept the new or modified Agreement, and if you continue to hold a valid Site License, you will be able to continue using the Software subject to the terms of the new or modified Agreement. If you decline to accept the new or modified Agreement, or if you cannot comply with the terms of the new or modified Agreement for any reason, you will no longer be permitted to use the Software. New or modified versions of the Agreement will not be applied retroactively. Cereblitz may change, modify, suspend, or discontinue any aspect of the Software at any time. Cereblitz may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability.
A. For purposes of this Agreement, Cereblitz will send any notices to your billing address and email you a copy to the email address you have provided to us. It is your responsibility to inform Cereblitz of any changes to your billing address or email address.
B. For purposes of this Agreement, you will send any notices to Cereblitz to Cereblitz LLC, 2038 De Milo Drive, Houston, TX 77018, attn: Legal Department.
To expedite resolution and control the cost of any dispute, controversy, or claim related to this Agreement (a "Dispute"), you and Cereblitz agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other.
A. If you and Cereblitz are unable to resolve a Dispute through informal negotiations, either you or Cereblitz may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
B. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA's website at www.adr.org.
C. If you and Cereblitz cannot agree whether a Dispute is subject to arbitration, such determination shall be governed by the Federal Arbitration Act and determined by a district court of the State of Texas, located in Harris County, Texas, rather than by an arbitrator.
D. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Cereblitz will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Cereblitz may litigate in court for the limited purposes of compelling arbitration, staying a proceeding pending arbitration, or confirming, modifying, vacating, enforcing, or entering judgment on the award entered by the arbitrator.
E. You and Cereblitz agree that any arbitration shall be limited to the Dispute between Cereblitz and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
F. You and Cereblitz agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Cereblitz's intellectual property rights, including but not limited to rights arising from patent, copyright, trademarks, trade names, trade dress, service marks, or trade secrets; (2) any Dispute related to, or arising from, allegations by Cereblitz of theft, piracy, invasion of privacy, or unauthorized use; and (3) any claim for injunctive relief.
Any arbitration will take place in Harris County in the State of Texas, United States of America, unless the parties agree otherwise in writing. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of the State of Texas located in Harris County, State of Texas, United States of America. Such court shall have both exclusive jurisdiction and exclusive venue of any Dispute not subject to arbitration, or where no election to arbitrate has been made, and you and Cereblitz agree to submit to the personal jurisdiction of that court.
You agree that this Agreement was entered into in the city of Houston, Harris County, Texas, in the United States of America, on the date on which you first downloaded, installed, or used the Software. Except as otherwise set forth herein, this Agreement shall be governed by, and will be construed under, the Laws of the United States of America and the law of the State of Texas, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Depending on your location when using the Software, you may be required to comply with additional laws. You agree that your use of the Software from any location is on your own initiative, that you alone are responsible for compliance with local laws if and to the extent local laws are applicable, and that such local laws shall not affect the construction or enforcement of this Agreement.
A. Some Third-Party Software included in, distributed with, or utilized by or with the Software is subject to licensing terms other than those contained in this Agreement. You agree that no terms in any such license shall apply to the Software.
B. The following licenses apply to Third-Party Software included in or distributed with the Software:
|Stripe PHP API Library||Stripe Terms of Service - United States, available at stripe.com|
|TinyMCE||GNU Lesser General Public License, version 2.1|
|Twig||New BSD License|
If you did not receive a copy of each of these licenses when you downloaded the Software, Cereblitz will provide you with a copy, free of charge, upon request.
A. You acknowledge that no software is perfect and that the Software may contain errors, bugs, security vulnerabilities, or other defects, whether known or unknown to Cereblitz.
B. If you become aware of any security vulnerability or security breach in or attributable to any version of the Software, or any actual or potential exploit thereof, you agree to disclose such security vulnerability, security breach, or exploit to Cereblitz within 3 business days of the day on which you became aware of it.
C. You agree not to disclose any security vulnerability or security breach in or attributable to any version of the Software, or any actual or potential exploit thereof, to anyone other than Cereblitz unless and until (i) you give Cereblitz notice of such security vulnerability, security breach, or exploit; (ii) 30 days have elapsed after the date on which you first gave Cereblitz such notice; (iii) you give Cereblitz notice of your intent to disclose such security vulnerability or security breach (a "Notice of Intent to Disclose"); and (iv) 5 business days have elapsed after the date on which you gave Cereblitz a Notice of Intent to Disclose, except as required by law.
D. Should you fail to comply with paragraphs (B) or (C) of this section, such failure shall constitute a material breach of this Agreement and Cereblitz shall be entitled to all legal or equitable relief necessary to enforce the terms of this Agreement. Such relief may include, but is not necessarily limited to, damages, injunctive relief, or a declaratory judgment. You agree that a failure to comply with paragraph (C) of this section may result in both irreparable and compensable harms to Cereblitz and that you may be liable for any damages to Cereblitz resulting from such failure, including but not limited to breach of contract, loss of goodwill, lost profits, tortious interference, disparagement, libel, or slander, as appropriate.
E. Nothing in this section shall impose any duty on Cereblitz or expand the liability of Cereblitz beyond that imposed by other terms of this Agreement.
You and Cereblitz agree that if any portion of this Agreement is found illegal or unenforceable (except any portion of 16.3(F)) that portion shall be severed and the remainder of the Agreement shall be given full force and effect. If Section 16.3(F) is found to be illegal or unenforceable then neither you nor Cereblitz will elect to arbitrate any Dispute falling within that portion of Section 16.3(F) found to be illegal or unenforceable and such Dispute shall be decided by a court of the State of Texas within Harris County, State of Texas, United States of America, and you and Cereblitz agree to submit to the personal jurisdiction of that court.
This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. The provisions of Sections 2-6, 11-14, and 16-20 shall survive the termination of this Agreement for any reason.