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Software EULA (End User License Agreement]
IMPORTANT! BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND
RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT ("EULA").
This EULA is a binding legal agreement between you and Steve Breitborde Consulting
(hereinafter "Licensor") for the materials accompanying this EULA, including the
accompanying computer software, legal forms, associated media, printed
materials and any "online" or electronic documentation (hereinafter the
"Software") and source code of the Software (hereinafter the "Source Code").
By installing the Software or using the Source Code, you agree to be
bound by the terms of this EULA. If you do not agree to the terms of this
EULA, do not install or attempt to use the Software.
1. Grant of License
The Software and legal forms are protected by copyright laws and
international copyright treaties, as well as other intellectual property
laws and treaties. The Software and forms are licensed, not sold.
This EULA grants you the following rights:
- A. Your license rights under this EULA are non-exclusive. All rights not
expressly granted herein are reserved by Licensor.
You are granted a
license for use on one (1) domain as specified at the time of your order.
- B. You may not sell, transfer or convey the Software to any third party
without Licensor's prior express written consent.
- C. You may not reverse engineer the software for any purpose whatsoever.
- D. You may not modify or remove any copyright information in the Software
or the distributed files.
2. Replacement, Modification and/or Upgrades
Licensor may, from time to time, and for a fee, replace, modify or upgrade
the Software. When accepted by you, any such replacement or modified
Software code or upgrade to the Software will be considered part of the
Software and subject to the terms of this EULA (unless this EULA is
superceded by a further EULA accompanying such replacement or modified
version of or upgrade to the Software).
3. Termination
You may terminate this EULA at any time by destroying all your copies of the
Software. Your license to the Software automatically terminates if you fail
to comply with the terms of this agreement. Upon termination, you are
required to remove the Software from your computer and destroy any copies of
the Software in your possession.
4. Copyright
A. All title and copyrights in and to the Software (including but not
limited to any images, photographs, animations, video, audio, music and
text incorporated into the Software), the accompanying printed materials,
and any copies of the Software, are owned by Licensor or its suppliers.
This EULA grants you no rights to use such content. If this Software
contains documentation that is provided only in electronic form, you may
print one copy of such electronic documentation. Except for any copies of
this EULA, you may not copy the printed materials accompanying the Software.
B. You may not to reverse engineer, de-compile, disassemble, alter,
duplicate, modify, rent, lease, loan, sublicense, make copies of, create
derivative works from, distribute or provide others with the Software in
whole or part, transmit or communicate the application over a network.
5. Disclaimer of Warranties
LICENSOR AND ITS SUPPLIERS PROVIDE THE SOFTWARE "AS IS" AND WITH ALL FAULTS,
AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR
PURPOSE, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE OR LACK OF
WORKMANLIKE EFFORT. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, OF
QUIET ENJOYMENT, OR OF NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE
USE OR PERFORMANCE OF THE SOFTWARE IS WITH YOU.
6. Limitation of Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR
OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT,
INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER ARISING OUT OF OR IN
ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND WHETHER
BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF
LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS EXCLUSION OF DAMAGES WILL BE EFFECTIVE EVEN IF ANY REMEDY
FAILS OF ITS ESSENTIAL PURPOSE.
7. Arbitration
This Agreement is made under, shall be governed by and construed in
accordance with the laws of the United States.
8. Severability
If any term of this EULA is found to be unenforceable or contrary to law,
it will be modified to the least extent necessary to make it enforceable,
and the remaining portions of this Agreement will remain in full force and
effect.
9. No Waiver
No waiver of any right under this EULA will be deemed effective unless
contained in writing signed by a duly authorized representative of the party
against whom the waiver is to be asserted, and no waiver of any past or
present right arising from any breach or failure to perform will be deemed
to be a waiver of any future rights arising out of this EULA.
10.Entire Agreement
This EULA constitutes the entire agreement between the parties with respect
to its subject matter, and supersedes all prior agreements, proposals,
negotiations, representations or communications relating to the subject
matter. Both parties acknowledge that they have not been induced to enter
into this EULA by any representations or promises not specifically stated
herein.
CONSULTING TERMS AND CONDITIONS
This Agreement is made between your the customer (herein refered to as "Client") and Steve Breitborde Consulting (herein refered to as "Consultant").
1. Services to be Performed
Consultant agrees to perform the services described in services that the customer has selected. The specifics of the services selected will be determined wholly by the Consultant.
2. Payment
In consideration for the services to be performed by Consultant, Client agrees to pay Consultant at the rate of $300.00 [Three Hundred Dollars] for services specifically described in Section 1, described above.
3. Terms of Payment
Due prior to commensment of any work or services to be performed by the Consultant.
5. Intellectual Property Ownership
Consultant grants to Client a royalty-free nonexclusive license to use anything created or developed by Consultant for Client under this Agreement (Contract Property). The license shall have a perpetual term and Client may not transfer it. Consultant shall retain all copyrights, patent rights and other intellectual property rights to the Contract Property. This assignment is conditioned upon full payment of the compensation due Consultant under this Agreement.
6. Consultant's Reusable Materials
Consultant owns or holds a license to use and sublicense various materials in existence before the start date of this Agreement (Consultant's Materials). Consultant's Materials include, but are not limited to, those items identified in Section 1, attached to and made part of this Agreement. Consultant may, at its option, include Consultant's Materials in the work performed under this Agreement. Consultant retains all right, title and interest, including all copyrights, patent rights and trade secret rights in Consultant's Materials. Consultant grants Client a royalty-free nonexclusive license to use any of Consultant's Materials incorporated into the work performed by Consultant under this Agreement. The license shall have a perpetual term and may not be transferred by Client. This assignment is conditioned upon full payment of the compensation due Consultant under this Agreement.
Materials obtained from third parties are excluded from Consultants license and will be bound by the individual license obtained from those third parties from which they are purchased directly by Client or on behalf of Client by Consultant.
7. Term of Agreement
This agreement will become effective upon receipt of Client payment in full and will terminate on the earlier of:
· the date Consultant completes the services required by this Agreement, or
· the date a party terminates the Agreement as provided below.
8. Terminating the Agreement
With reasonable cause, either party may terminate this Agreement effective immediately by giving written notice of cause for termination. Reasonable cause includes:
· a material violation of this Agreement, or
· nonpayment of Consultant's compensation after 10 days from date of requested services.
Consultant shall be entitled to full payment for services performed prior to the effective date of termination.
9. Independent Contractor Status
Consultant is an independent contractor, not Client's employee. Consultant's employees or subcontractors are not Client's employees. Consultant and Client agree to the following rights consistent with an independent contractor relationship.
· Consultant has the right to perform services for others during the term of this Agreement.
· Consultant has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed.
· Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement.
· Consultant or Consultant's employees or subcontractors shall perform the services required by this Agreement; Client shall not hire, supervise or pay any assistants to help Consultant.
· Neither Consultant nor Consultant's employees or subcontractors shall receive any training from Client in the skills necessary to perform the services required by this Agreement.
· Client shall not require Consultant or Consultant's employees or subcontractors to devote full time to performing the services required by this Agreement.
· Neither Consultant nor Consultant's employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay or other fringe benefit plan of Client.
10. Local, State and Federal Taxes
Consultant shall pay all income taxes and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. Client will not:
· withhold FICA from Consultant's payments or make FICA payments on Consultant's behalf
· make state or federal unemployment compensation contributions on Consultant's behalf, or
· withhold state or federal income tax from Consultant's payments.
The charges included here do not include taxes. If Consultant is required to pay any federal, state or local sales, use, property or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to Client. Client shall be responsible for paying any interest or penalties incurred due to late payment or nonpayment of any taxes by Client.
11. Exclusive Agreement
This is the entire Agreement between Consultant and Client.
12. Modifying the Agreement
Client and Consultant recognize that:
· Consultant's original cost and time estimates may be too low due to unforeseen events, or to factors unknown to Consultant when this Agreement was made
· Client may desire a mid-project change in Consultant's services that would add time and cost to the project and possibly inconvenience Consultant, or
· Other provisions of this Agreement may be difficult to carry out due to unforeseen circumstances.
If any intended changes or any other events beyond the parties' control require adjustments to this Agreement, the parties shall make a good faith effort to agree on all necessary particulars. Such agreements shall be put in writing, signed by the parties and added to this Agreement.
13. Resolving Disputes
If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in the County of Los Angeles. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to a mutually agreed-upon arbitrator in the County of Los Angeles. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to do so. Costs of arbitration, including attorney fees, will be allocated by the arbitrator.
14. Limited Liability
This provision allocates the risks under this Agreement between Consultant and Client. Consultant's pricing reflects the allocation of risk and limitation of liability specified below.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR THE OTHER'S LOST PROFITS, OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES.
15. Notices
All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows:
· when delivered personally to the recipient's address as stated on this Agreement
· three days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated on this Agreement, or
· when sent by fax or electronic mail.
Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first class mail, or the recipient delivers a written confirmation of receipt.
16. No Partnership
This Agreement does not create a partnership relationship. Neither party has authority to enter into contracts on the other's behalf.
17. Applicable Law
This Agreement will be governed by the laws of the State of California.
18. Assignment and Delegation
Either Consultant or Client may assign its rights or may delegate its duties under this Agreement.
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