Glype Software License Agreement
1. Introduction and Acceptance This Software License Agreement (the "Agreement")
between you (either an individual or an entity, referred to hereinafter as "you"
or "your") and UpsideOut, Inc. ("UpsideOut", "we", "us" or "our") regarding
UpsideOut's software known as Glype and any updates, features, enhancements, bug
fixes or modifications of Glype version 1 (collectively, the "Software") and any
related services and content ("Services") that may be provided by us under this
Agreement.
By downloading, accessing, installing or using the Software or the Services (or
authorizing any other person to do so) you are representing and warranting that
you have reached the age of majority in your state or country (or that a parent
or guardian has consented to this Agreement on your behalf), have the authority
to enter into a binding legal contract, have read and understood this Agreement
and agree to be bound by its terms. This Agreement comprises the entire
agreement between you and us and supersedes any prior or contemporaneous
agreements, promises, representations, or descriptions pertaining to the subject
matter contained herein. If you do not agree with the terms and conditions of
this Agreement, you may not download, access, install or use the Software or the
Services.
2. Grant of License We have the sole and exclusive right and license to the
Software and the Software is being licensed, not sold, to you by UpsideOut for
use only under the terms of this Agreement. UpsideOut grants to you a limited,
non-exclusive license to download, access, install and use a single instance of
the Software on a single domain name for non-commercial purposes only. UpsideOut
and/or its licensors retain all right, title and interest in and to the Software
itself and reserve all rights not expressly granted herein. All rights in and to
the Software shall inure to the use and benefit of UpsideOut and/or its
licensors, successors and assigners. The source code to the Software ("Source
Code") is viewable and may be modified by licensed users pursuant to Sections 3
and 6 of this Agreement and in accordance with the terms of this Agreement.
3. Restrictions Without limiting the generality of "Grant of License" above,
your license to use the Software and related Services is subject to the
following terms and conditions and restrictions and prohibitions on use:
(a) You may not utilize the Software or Services to engage in or allow others to
engage in any activity that violates any law, rule, regulation or this Agreement
as it may be amended from time to time.
(b) You may not modify or subvert the Software in any way that may cause harm to
the Software, end-users, websites, or in any way that lessens the effectiveness
of the anonymity afforded by the Software to end-users.
(c) You may not utilize the Software or Services in any manner that may infringe
any copyright, trademark or any other intellectual property right, proprietary
right, property right or any other right of ours or any third party, or remove,
alter or conceal any copyright, trademark, patent or other property rights
notices contained on the Software.
(d) You may not transfer, assign, rent, lease, lend, sell, redistribute or
sublicense the Software, any portion of the Source Code or any rights under this
Agreement, except as expressly set forth in Section 5 of this Agreement.
(e) You may not and you agree not to, or to enable others to, create derivative
works of the Software or related Services.
(f) The Software may store or generate additional files (such as databases) for
use solely by the Software and us and may not be used for any other purpose or
disclosed to any third party for any reason.
(g) You may not exploit errors in design, features which are not documented or
bugs to gain access that would otherwise not be available or to obtain any
competitive advantage.
(h) The Software contains certain access control mechanisms designed to prevent
its use or misuse by various entities. Such access control mechanisms are
clearly identified in the Sorce Code and may not be modified or removed in any
event.
4. Licensing Options and Fees The webpages output by the Software may contain
visual references to us or to the Software and links to the Glype.com website
(collectively, "Copyright Attribution Notices"). The Software is free to
download, install and use for non-commercial purposes provided that all
Copyright Attribution Notices remain visible and unmodified. You may obtain a
license from us which allows commercial use and allows you to remove Copyright
Attribution Notices.
5. Assignment You may not assign this Agreement or your license rights in the
Software. This Agreement and all incorporated agreements and your information
may be assigned by us in our sole discretion.
6. Grant Back All modifications, alterations and improvements made to the
Software and related material (collectively, the "Contribution") shall inure
solely to our benefit and shall be owned solely by us. You agree to disclose and
transfer the Contribution (including documentation, supporting files, unencoded
source code, and acquired know-how) to us. You hereby assign, transfer, grant,
convey and quitclaim unto us, and we accept, all your rights, title and interest
in the Contribution, for us and our heirs, successors and assigns forever to
have and to hold. We subsequently grant you a non-exclusive, royalty-free and
perpetual license to use such Contribution but only as set forth in this
Agreement.
7. Intellectual Property The Software and data available on the Glype.com
website (including information, content, organization, graphics, and design) are
our property or the property of third parties and are protected by copyright,
trademark and other intellectual property laws. We reserve any rights not
expressly granted herein.
8. Templates and Plugins The appearance and functionality of the Software can be
augmented by templates and plugins (the "Plugins"), the creation of which is
subject to Section 3 of this Agreement and in accordance with the terms of this
Agreement. You agree to disclose and transfer any Plugins made by you (including
documentation, supporting files, unencoded source code, and acquired know-how)
to us subject to Section 15 of this Agreement.
9. Termination This Agreement shall remain in effect until terminated. Your
rights under this Agreement will terminate automatically or otherwise cease to
be effective without notice from us if you fail to comply with any term of this
Agreement. We reserve the right to terminate your license to use the Software or
any related Service for any or no reason, with or without notice, at any time.
Upon the termination of this Agreement, you shall immediately cease all use of
the Software and destroy all copies, full or partial, of the Software that may
be in your possession or under your control. We shall not be liable to you or
any third party for any claim or cause of action arising out of our exercise of
the foregoing rights. The provisions in Sections 16-18, and 21-23 of this
Agreement shall survive any such termination.
10. Modifications to Agreement We reserve the right to modify the terms of this
Agreement at any time, and to change, discontinue or impose conditions on any
feature or aspect of the Software, or related Services and to provide
notification solely by posting an updated version of the Agreement on the
Glype.com website. You are responsible for regularly reviewing our policies.
Continued use of the Software after any policy change shall constitute your
binding consent to such changes.
11. Registration Data Certain aspects of the Software or Services may require
you to register. If registration is requested, you agree to provide us with
true, accurate, current and complete information as prompted by the sign-up
process. If you provide any information that is inaccurate, not current or
incomplete, or we have reasonable grounds to suspect is inaccurate, not current
or incomplete, we may suspend or terminate your account unless and until such
data is corrected or completed, or we may refuse any and all current or future
access to and use of the Software or Services (or any portion thereof).
12. Account Security You are solely responsible for (a) maintaining the
confidentiality and security of your administrator password and any other
account information used by you to access the Software and Services; and (b)
preventing unauthorized access to or use of the information, files or data that
you store or use in or with the Software and Services.
13. Payments You represent and warrant that if you are purchasing something from
us that (a) all billing information you supply is true and complete; (b) charges
incurred by you will be honored by your bank and/or credit card company; and (c)
you will pay the charges incurred by you at the posted prices, including any
applicable taxes. Payment is due at the time of order. In the event of any
default in making payments due to us, you agree to pay to us interest on any
unpaid balance at the highest applicable legal rate from the date of default,
plus our costs of collection, including attorneys' fees.
14. No Refund Policy All sales are final and no refunds will be issued, unless a
clear technical problem results in an inadvertent duplicate payment. Please
ensure your transaction is correct before submitting your payment. By submitting
any payment to us, you are agreeing to our no refund policy.
15. Submissions We provide various mechanisms to provide suggestions, ideas, and
other remarks about the Software and any related services to us (collectively, a
"Submission"). You agree that we are entitled to use the Submission in our full
and complete discretion, including, without limitation, for any commercial or
other purpose whatsoever, without compensation to you or any other person
sending the Submission. You hereby waive any "moral rights" in any Submission
and grant us a perpetual, irrevocable, royalty-free, worldwide, sub-licenseable
(through multiple tiers) license to make, have made, sell, offer for sale,
import, use, reproduce, distribute (through multiple tiers), prepare derivative
works of, publicly perform and publicly display the Submission (and any
derivative works of the Submission) in any media now known or hereafter known.
16. DISCLAIMER OF WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT
WARRANTY OF ANY KIND, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS
WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY,
OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF
QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT
THAT THE SOFTWARE OR ANY RELATED SERVICES OR CONTENT WILL MEET YOUR
REQUIREMENTS, OR IS SECURE, OR IS FREE FROM BUGS, VIRUSES, ERRORS, OR THAT
DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN
THAT EVENT, SUCH WARRANTIES THAT MAY ARISE BY OPERATION OF LAW, ARE LIMITED IN
DURATION TO 30 DAYS FROM THE DATE OF LICENSE OF THE SOFTWARE. YOU EXPRESSLY
ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE AND SERVICES ARE AT YOUR SOLE
RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, USE,
OUTPUT, ANALYSIS, RESULTS, ACCURACY AND EFFORT IS WITH YOU. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR OUR EMPLOYEES,
REPRESENTATIVE OR AGENTS OR THROUGH OR FROM THE SOFTWARE OR OUR WEBSITE SHALL
CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
17. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT SHALL WE (or any of our our successors and predecessors and each of
our and their respective parents, subsidiaries, affiliates, licensors,
licensees, officers, directors, shareholders, partners, joint-venturers,
employees, agents, contractors and suppliers and each of their respective
officers, directors, principals, shareholders, members, employees, agents,
representatives, heirs, executors, administrators, successors and assigns) BE
LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, PERSONAL
INJURY OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, COVER,
CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS
OF PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES, BUSINESS INTERRUPTION, LOSS OF GOODWILL OR ANY OTHER COMMERCIAL
DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE USE OF, OR INABILITY TO USE,
THE SOFTWARE OR ANY RELATED SERVICES OR CONTENT, HOWEVER CAUSED, REGARDLESS OF
THE THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED
OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL OUR
TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER EXCEED THE
AMOUNT PAID BY YOU TO LICENSE THE SOFTWARE (IF ANY). SOME JURISDICTIONS DO NOT
ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE FOREGOING LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE
LIMITATIONS OF THE DAMAGES SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE
BASIS OF THE BARGAIN BETWEEN US AND YOU, AND WE WOULD NOT HAVE BEEN ABLE TO
PROVIDE THE SOFTWARE TO YOU WITHOUT SUCH LIMITATIONS. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
18. Indemnification You agree to fully indemnify and hold us, our successors and
predecessors and each of our and their respective parents, subsidiaries,
affiliates, licensors, licensees, officers, directors, shareholders, partners,
joint-venturers, employees, agents, contractors and suppliers and each of their
respective officers, directors, principals, shareholders, members, employees,
agents, representatives, heirs, executors, administrators, successors and
assigns, harmless from and against any claim, suit, hearing, action, expense or
demand, including without limitation to: all claims for damages, fees or costs
(including attorneys' fees), arising out of or related to the use of the
Software or any related Services or content by you, your agents or
representatives, anyone under your control, or by any third party using your
equipment or accounts to use the Software or Services (for purposes of this
section, collectively, "you"); the violation by you of any provision of this
Agreement; the violation by you of any laws or regulations; or the infringement
or misappropriation by you any copyright, trademark or any other intellectual
property right, proprietary right, property right or any other right of ours or
any third party. We reserve the right to assume the exclusive defense and
control of any matter otherwise subject to indemnification by you, in which
event you will cooperate with us in asserting any available defenses and, as set
forth above, be fully responsible for our attorneys' fees.
19. Export Control You may not use or otherwise export or re-export the Software
except as authorized by United States law and the laws of the jurisdiction in
which the Software was obtained. In particular, but without limitation, the
Software may not be exported or re-exported (a) into any U.S. embargoed
countries or (b) to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals or the U.S. Department of Commerce Denied Persons List or
Entity List. By using the Software, you represent and warrant that you are not
located in any such country or on any such list. You also agree that you will
not use the Software for any purposes prohibited by any laws, regulations or
rules applicable in the United States (whether federal, state or local),
including, without limitation, the development, design, manufacture or
production of nuclear, chemical or biological weapons.
20. U.S. Government End Users The Software and related documentation are
"Commercial Items", as that term is defined at 48 C.F.R. ¤2.101, consisting of
"Commercial Computer Software" and "Commercial Computer Software Documentation",
as such terms are used in 48 C.F.R. ¤12.212 or 48 C.F.R. ¤227.7202, as
applicable. Consistent with 48 C.F.R. ¤12.212 or 48 C.F.R. ¤227.7202-1 through
227.7202-4, as applicable, the Commercial Computer Software and Commercial
Computer Software Documentation are being licensed to U.S. Government end users
(a) only as Commercial Items; and (b) with only those rights as are granted to
all other end users pursuant to the terms and conditions herein.
Unpublished-rights are reserved under the copyright laws of the United States.
21. Suspected Violation of this Agreement or Law; Injunctive, Equitable Relief,
and Liquidated Damages Without limiting any other Section of this Agreement, you
acknowledge that we would be irreparably harmed by any violation of the
provisions in Sections 3-7 of this Agreement, and there is no adequate remedy at
law for such breach. Accordingly, in the event of any breach by you of these
provisions of this Agreement, in addition to any other remedies we may have at
law or in equity, you will have the unconditional obligation to pay us the sum
of not less than One Hundred Thousand Dollars ($100,000) for each such breach as
liquidated damages, and we shall be entitled immediately to seek enforcement of
this Agreement in a court of competent jurisdiction by means of a decree of
specific performance, an injunction without the posting of a bond or the
requirement of any other guarantee, and any other form of equitable relief. In
addition, you recognize, acknowledge and agree that the we are entitled to
recover from you the costs and attorneys' fees incurred by us to enforce the
terms of this Agreement.
22. Governing Law This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of America
(without giving effect to conflict of law provisions of this or any other
jurisdiction), and all actions arising in connection with this Agreement shall
be brought within the State of New York. This Agreement will not be governed by
the United Nations Convention on Contracts for the International Sale of Goods,
the application of which is expressly excluded.
23. Dispute Resolution Any controversy, dispute or claim arising out of or
relating to this Agreement or the Software shall be settled solely by binding
arbitration in accordance with the commercial arbitration rules of the American
Arbitration Association. The arbitration shall be before a single arbitrator.
Any such controversy, dispute or claim shall be arbitrated on an individual
basis, and shall not be consolidated in any arbitration with any controversy,
dispute or claim of any other party. The arbitration shall be conducted at a
site in the State of New York, City of New York, and under the laws of the State
of New York (without giving effect to conflict of law principles), and judgment
on the arbitration award may be exclusively entered in any court having
jurisdiction thereof within the State of New York. Each party shall bear
one-half of the costs of the arbitration, including the fees incurred through
AAA. Nothing herein shall limit the right of you or us to seek any interim or
preliminary equitable or injunctive relief from a court of competent
jurisdiction within the State of New York or any other jurisdiction necessary to
enforce any right under this agreement pending the completion of arbitration.
You expressly consent to and waive any objection or defense which you may have
or hereafter have to the venue or jurisdiction of any such action, suit or
proceeding as set forth herein. This provision is not a waiver of any rights
which we may have under this Agreement, including the right to recover money
damages.
24. Severability In the event that any portion of this Agreement is held invalid
or unenforceable by a court of competent jurisdiction, that portion shall be
construed consistent with applicable law and the remaining portions shall remain
in full force and effect.
25. Titles The section titles in this Agreement are solely used for the
convenience of the parties and have no legal or contractual significance.
26. Statute of Limitations You agree that any cause of action against us arising
out of or related to the Software or any related services, regardless of its
form, must be commenced by you within one (1) year from the date on which the
cause of action arose; otherwise, such cause of action is permanently waived and
barred.
27. Waiver Our failure to enforce your strict performance of any provision of
this Agreement will not constitute a waiver of our right to subsequently enforce
such provision or any other provision of this Agreement. No provision of this
Agreement will be waived by any act, omission or knowledge of us or our agents
or employees except by an instrument in writing expressly waiving such provision
and signed by a duly authorized officer of ours.