AVChat License Agreement
Effective May 20th 2010.
1. ACKNOWLEDGEMENT. The parties referred to herein acknowledge and agree to the matters set out hereunder in this License Agreement. To complete your downloading and or installation of the Software, you (the Licensee) must accept the terms and conditions of this Agreement.
Use of the Software and of the Service is undertaken on the basis of these terms and conditions. If you choose not to read these terms and conditions, but sign and use the Software and or the Service, then you are deemed to have accepted these terms and conditions as though you had read them, and understood them, and explicitly agreed to these terms and conditions.
This Agreement governs your use of the Service and the Software as defined hereunder and all related components thereof, and is a legally binding agreement which creates important legal obligations.
The Licensee acknowledges the software has certain requirements that need to be complied in order for the software to function properly including but not limited to: access to media server, web-server, and browser with flash player installs and connected to the internet or others as published on the Licensor website.
In this agreement:
"Agreement": means this agreement (which is also called the License Agreement) between the Licensor and the Licensee, as modified from time to time.
"Licensor": means Naicu S.D. Octavian I.I.
"Licensor's Address": means Str. Radu Popescu, Bl. 32 B, Sc. B, Et. 3, Ap. 13, Tirgoviste;
"Licensor's E-mail Address": means firstname.lastname@example.org
"Licensor's Associates": includes all parties associated in any way whatsoever with the Licensor (and at the Licensor's sole discretion includes without limitation the Licensor's suppliers, licensors, employees, officers, parents, subsidiaries, affiliates, associates, directors, contractors, sub-contractors, co-branders, partners, attorneys, or agents, and include natural persons or corporations or other entities).
"Software": means the AVCHAT software which is installed on your websites or servers and includes all related components of the Software, and includes any upgrades and amendments to the Software from time to time.
"Service": means the services offered by the Licensor including but not limited to: the integration of the Software with your website, installation of the software, installation of the additional media software, technical support services as established in the Licensor's business practices, as published on its websites.
"Licensee": means the person or corporation entitled, pursuant to this Agreement, to use the Software or the Service, and includes any person who does in fact use the Software or the Service on any basis whatsoever. The Licensee is also referred to as "you" in this Agreement.
"License Agreement": means this agreement as modified from time to time by the Licensor and published on the website.
"We": means the Licensor.
"You": means the Licensee.
3 ACCESS TO SOFTWARE OR THE SERVICE. If you use the Software or the Service, you become a Licensee to it, whether you are a paying License, or a License who is using the Software or the Service on a free trial basis, or a Licensee who is evaluating a beta release of the Software, or otherwise. By using the Software or the Service, the Licensee agrees to use it on the basis of this Agreement. Please read this Agreement carefully because it forms the basis of the legal relationship between you (you means the Licensee) and any other users on the one hand, and the Licensor on the other hand.
Licensee or other users of the Software or any part thereof or the Service or any part thereof, must agree to the following terms and conditions before using the Software or the Service. Please read them carefully, and ensure that any other users to read them carefully.
4 AUTHORITY & ACKNOWLEDGEMENT & ASSERTION. The Licensor warrants that it is authorized to enter into this Agreement in respect of the Software or the Service for the purpose of offering the Software or the Service to Licensee.
By using the Software or the Service, you (and if appropriate, the Licensee) assert that any information which you give in relation to the use thereof is correct, and you assert that either you have the legal capacity to enter into this Agreement.
The Licensee acknowledges that it is essential to this Agreement that this Agreement contains disclaimers of warranties by the Licensor, and limited liability upon the Licensor and the Licensor's Associates, and limited remedies available to the Licensee.
5 PARTIES. This Agreement is between you (you are the Licensee) and the Licensor for the use of the Software or Service. If the Licensee allows any other person or corporation (Designated Users) to use the Service, the Licensee is wholly responsible for such Designated User's conduct as if such conduct were the Licensee's conduct.
The Licensee is responsible for ensuring that any and all users of the Software or the Service (whether Designated Users or not) abide by the terms of this Licensee Agreement.
You and any other users of the Software or the Service agree that this Agreement binds you, your Designated Users, and any other person who uses the Software or the Service through your account with the Licensor.
6 RIGHT TO USE SOFTWARE AND THE SERVICE. Pursuant to this Agreement, as long as you comply with the terms of this Agreement, you (the Licensee) are hereby granted a license to use the Software. The Software is only licensed to you, and is not sold to you.
The Licensor hereby grants, and you hereby accept, a non-assignable, non-exclusive, non-transferable, non-sublicensable, limited license to use the Software in the manner in which the Software is intended to be used, and on the basis of this Agreement, for the term for which you hold either a free trial License or a paid up Licensee, after which you acknowledge that you have no right to use the Software and after which you agree to uninstall the Software.
If you do not continue to abide by the terms of this Agreement you acknowledge that you have no right to use the Service or the Software and you agree to uninstall the Software forthwith upon your not continuing to abide by the terms of this Agreement.
7 THE SOFTWARE. The Software offered by Licensor works on a stand alone base on your website and server. The Licensor shall have no obligation to you for the maintenance of the software after the expiration of the license right to access to the Service. From time to time, the Licensor may release updates of the Software for the purpose of thereby enhancing the Software. The Updates will not be made automatically to your website, but they will be posted on the Licensor websites and You can access the updates from the Licensor website. For access to the new updates You might have to purchase a new License right, in the terms and conditions established by the Licensor.
Reference to the Software includes reference to all electronic material made available to the Licensee at any time, and includes all associated software, associated modules, user documentation, user manuals, installation guides, training materials, if any, and also to a new release or update, being a subsequent release or update of a component of the Software which provides either one or more of the following modifications to the Software: being a patch, fix, modification, error correction, or enhanced functionality of the Software.
8 PAYMENT. The Licensee is required to pay for downloading or installing the Software. Upon the Licensee completing installation of the Software, the Licensee shall be allowed to use the Software free of charge for the number of days indicated when the Licensee downloaded the Software (hereinafter referred to as the "Free Trial"). After the expiry of the Free Trial, the Software will cease to work.
After the expiry of the Free Trial, if the Licensee continues to use the Software and the Service, the Licensee might be charged automatically of all applicable fees for the Software and the Service based upon the Licensee rate for the Licensee selected by the Licensee .
Charges for the use of the Software and the Service are based on type of the Software selected by the Licensee, and on the duration of the Software or the Service selected by the Licensee.
Unless otherwise agreed, the Licensee shall pay in advance any Licensee fees and other charges incurred by the Licensee for the use of the Software or the Service at the License rates in effect for the billing period in which those charges are incurred.
For situations where credit card payment is utilized, the Licensee should maintain a current authorization for the Licensor to debit the Licensee's Credit Card account for such amounts as become due from time to time, so that the Licensee can continue a paid up Licensee to the Software and the Service.
For situations where the Licensee's Credit Card issuing financial institution has been notified of a payment dispute, the Licensee agrees that proof by the Licensor of the Software or Service usage by the Licensee constitutes the Licensee's authorization to submit a payment request to the Credit Card issuing financial institution.
The Licensee shall pay all applicable taxes, if any, related to use of the Software or the Service by the Licensee or the Licensee's Designated Users.
For Licensee who do not hold credit cards, the Licensor may choose to bill the Licensee through an invoice, in which case full payment for invoices issued in any given month must be received by the Licensor within the number of days stated on the invoice from the date shown on the invoice, failing which the Software and the Service may be suspended or terminated. The Licensee accepts full responsibility for proactively ensuring that fees are paid within the stated timeframes, and if an invoice is not received when due, the Licensee is responsible for following up with the Licensor to ensure that payment is made to maintain the currency of the License. At the discretion of the Licensor, unpaid invoices are subject to interest at the rate of 1.0% per month on any outstanding balance, plus all expenses of collection, if any.
If the Licensee's account is not paid in accordance with the agreed payment terms (which generally means for fee-paying License that the License is paid in advance) for any period, the Licensor may, in addition to any other rights, at its sole discretion and without notice to the Licensee:
(a) suspend the obligation of the Licensor to perform under this Agreement, and deny the Licensee 's and the Licensee 's Designated Users' access to and use of the Software and the Service until the Licensee 's License is back in good standing, or
(b) terminate the your License and the Licensee Designated Users' access to and use of the Software.
The Licensor can use an e-commerce platform of a service provider.
From time to time the Licensor may offer special promotional or free trial offers at the Licensor's discretion, and the Licensor reserves the right to discontinue or modify those offers at the Licensor's sole discretion. Any free trial offer entitles a new License to a one-time free trial usage of the Software or the Service. Free trial terms may vary from offer to offer. At the end of the free trial period, if you continue to use the Software or the Service, you may be automatically subscribed, and if so, if you have provided credit card details to the Licensor, the Licensor may bill your credit card for the fees to the Software and the Service plan selected by. If the Licensee wishes to terminate the Software at the end of the free trial period, and does not want to buy a new license, the Licensee can't use the Software thereinafter. To cancel your use of the Software, follow the instructions set out in the Software.
9 AUTOMATIC RENEWAL. If you continue using the Software and the Service you agree to permit the Licensor to automatically renew your License to the Software and/or the Service by charging the credit card number which you have provided to the Licensor. In that event your License will be automatically renewed within fourteen days prior to the expiration of your License at the then current price. If you do not want automatic renewal to occur, you must provide the Licensor with 14 days written notice as set out hereunder.
10 CANCELLATION AND TERMINATION. The Licensee may cancel a free trial the Software at any time during the free trial period on one day's written notice given by the Licensee by email to the Licensor at the Licensor's email address.
The Licensee may cancel a fee-paying the Software and Service upon 30 days written notice given by the Licensee by email to the Licensor at the Licensor's email address; and if the Licensee cancels the Software without providing the Licensor with 30 days written notice of the Licensee's intention to terminate use of the Software, the Licensee must pay for that period whether the Licensee uses it or not.
In the event of the Licensee canceling the Software, the Licensor will not provide a refund for the unused portion of the Software or the Service if any, paid in advance by the Licensee.
The Licensor may cancel the Licensee's the Software or Service with or without cause upon thirty (30) day's prior written notice given by the Licensor by at least two emails sent to the Licensee at the Licensee's address as shown in the Licensee's account details.
Following the date of cancellation, the Licensee access to any of your data stored through the Software or Service may be permanently terminated.
11 PERMITTED USE. The Licensee is hereby authorized to use the Software for production website, one test website and local host and for a maximum number of users as paid for by the Licensee to the Licensor according to the License rates published by the Licensor from time to time.
If the Licensee requires additional number of users, the Licensee may purchase additional Licenses for software and services, or may change the Licensee's account size by contacting the Licensor and agreeing to pay a higher License rate.
12 GRANT OF LICENSE. Pursuant to this Agreement, as long as you comply with the terms of this Agreement, you (the Licensee) are hereby granted a license to use the Software.
Licensor hereby grants you and only you, and you hereby accept the following non-exclusive, limited, non assignable, non-transferable, non-sublicensable and royalty-bearing license to use the Software, in the manner in which the Software is intended to be used, and on the basis of this Agreement, for the term for which you hold either a free trial License to the Software or a paid up License to the Software, after which you acknowledge that you have no right to use the Software and after which you agree to uninstall the Software.
If you do not continue to abide by the terms of this Agreement you acknowledge that you have no right to use the Software and you agree to uninstall the Software forthwith upon your not continuing to abide by the terms of this Agreement.
13 TERM OF LICENSE. The license granted hereunder shall commence on the access date of Software and shall expire at the end of the period for which the license is acquired.
If you do not continue to abide by the terms of this Agreement you acknowledge that you have no right to use the Software and you agree to uninstall or not use the Software forthwith upon your not continuing to abide by the terms of this Agreement.
14 EXPIRATION. The product will cease to perform its functions immediately upon expiration of the license.
15 UPGRADES. If the Software is labeled as an upgrade, you must be properly licensed to use a product identified by Licensor as being eligible for the upgrade in order to use the Software. Software labeled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this License Agreement. The terms and conditions of this license replace and supersede any previous agreements that may have existed between you and Licensor regarding the original product or the resulting upgraded product. For having access to the Upgrades you have to acquire a new license, as established in the terms of the Licensor's business policies as published on its website.
16 COPYRIGHT. All rights, titles and interest in and to the Software and all copyright rights in and to the Software (including but not limited to any technology, images, photographs, logos, animations, video, audio, music, text, code, incorporated into the Software) the accompanying materials, and any copies of the Software are owned by Licensor. The Software is protected by copyright laws and international treaty provisions. Therefore, you must treat the Software like any other copyrighted material. You may not copy the materials accompanying the Software. You must produce and include all copyright notices in their original form for all copies created irrespective of the media or form in which the Software exists. You may not sub-license, rent, sell, lease or share the Software license. You may not reverse engineer, recompile, disassemble, create derivative works, modify, translate, or make any attempt to discover the source code for the Software.
17 ILLEGAL USE. You shall not use the SOFTWARE for storage, possession, or transmission of any information, (including without limitation, stolen materials, obscene materials, or child pornography, copyrighted) the possession, creation, or transmission of which violates any law, statute, ordinance or regulation, or is defamatory, libelous, unlawfully threatening, or unlawfully harassing, is obscene, or indecent in violation of applicable law, or to propagate any viruses, worms, Trojans, or other programming intended to damage any computer, computer system, or computer data, or to use the Software in any manner that may injure any party or property in any way whatsoever.
To use the Software, you must provide certain limited information about you (the Licensee Details) at the sign-up stage, and you agree that such Licensee Details will be current, complete, and accurate, and that through the Software, you will maintain and update the Licensee Details in the Licensee details section from time to time to keep those Licensee Details current, complete, and accurate. You shall provide the Licensor with a current physical (street) address and Internet e-mail address for future communications and shall notify the Licensor of any change of address.
19 LIMITED WARRANTY. The Licensor does not warrant that the Software will be uninterrupted or error free or that the errors will be corrected. The Licensor does not warrant that the Software will meet your requirements. You acknowledge that the Licensor does not warrant that the Software will function satisfactorily on all computer systems or in conjunction with all computer operating systems, or on all combinations of computers and operating systems.
You acknowledge that your computer system and operating system may not be compatible with the Software, and or that the functionality and or features and or performance of the Software may not suit you, and the Licensee adopts full responsibility for all such matters.
LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, ENHANCEMENTS, MAINTENANCE OR SUPPORT RELATED THERETO, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY HIM. LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY OF DATA, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS by filtering, disabling, or removing such third party's software, spyware, adware, cookies, emails, DOCUMENTS, advertisements or the like, WHETHER ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE, OR TRADE USAGE.
20 DISCLAIMER OF DAMAGES. Anyone using, testing, or evaluating the Software bears all risk to the quality and performance of Software. In no event shall Licensor be liable for any damages of any kind, including, without limitation, direct or indirect damages arising out of the use, performance, or delivery of software, even if the Licensor has been advised of the existence or possibility of such damages. You expressly acknowledge and agree that you are bearing all risk as referred to herein is an essential part of this Agreement and is an essential factor in establishing the price of the Software, and acknowledges that the your bearing of all risk is an inherent part of the Software and of this Agreement and is inseparable from the Software and unseverable from this Agreement.
You acknowledge that you are responsible for keeping abreast of best practice in relation to the backing up of computer files, and of assessing your needs for back-up, and you are responsible for using methods of backup.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO CASE SHALL LICENSOR'S LIABILITY EXCEED THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE. The disclaimers and limitations set forth above will apply regardless of whether you accept to use, evaluate, or test the Software.
21 IMPORTANT NOTICE TO USERS. THIS SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THIS SOFTWARE IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
22 CONSENT TO ELECRONIC COMMUNICATIONS. Licensor and its partners may be required to send you legal notices and other communications about the Software and Service or our use of the information you provide us ("Communications"). Licensor will send Communications via in-product notices or via email to the primary user's registered email address, or will post Communications on its Sites. By accepting this Agreement, you consent to receive all Communications through these electronic means only and acknowledge and demonstrate that you can access Communications on Sites.
23 DATA COLLECTION TECHNOLOGY- Licensor informs you that in certain programs or products it may use data collection technology to collect technical information, to improve the products, to provide related services, to adapt them and to prevent the unlicensed or illegal use of the product or the damages resulting from the malware products.
You acknowledge and accept that Licensor may provide updates or additions to the program or product which you can download and install.
24 DATA COLLECTION. Access to the website by the Licensee and the acquisition of products and services and the use of tools or content via the website implies the processing of personal data. Complying with legislation governing the processing of personal data and information society services and electronic commerce is of the utmost importance to Licensor. Sometimes, to access products, services contents or tools, you will in some cases, need to provide certain personal details to the Licensor and its Partners. Licensor guarantees that such data will be treated confidentially and in accordance with legislation governing the protection of personal data and information society services and electronic commerce.
Licensor complies with applicable data protection legislation, and has taken the administrative and technical steps necessary to guarantee the security of the personal data that it collects.
You declare that all the data that you provide will be true and accurate and undertakes to inform Licensor of any changes to said data. You have the right to object to the processing of any of his or her data which is not essential for the execution of the agreement and to its use for any purpose other than the maintenance of the contractual relationship. In the event that you provide the details of a third-party, Licensor shall not be held responsible for complying with the principles of information and consent, and it shall therefore be you that guarantees to have previously informed and obtained the consent of the owner of the data, with regards to communicating such data.
Licensor and its affiliates and partners will only send marketing information by e-mail or other electronic means to those users who have given their express consent to receiving communication concerning Licensor's products or services or newsletters.
25 YOUR SOLE AND EXCLUSIVE REMEDY. Accordingly, the entire liability of the Licensor, and of the Licensor's Partners, and the sole and exclusive remedy of you (and of any other user or other party associated with or claiming through you) shall be receipt from the Licensor of the greater of the amount of Euro 1,00 (one Euro) and a refund of the amount paid by you, if any, for the use of the Service for the period of one month preceding the event forming the basis of any claim, and you (and any other user or other party associated with or claiming through you) hereby exchanges all other rights to which you (or that party) is or may become entitled for the right to receive the amount referred to herein.
26 GENERAL. This Agreement will be governed by the laws of Romania and by international copyright regulations and treaties. The exclusive jurisdiction and venue to adjudicate any dispute arising out of these License Terms shall be of the courts of Romania.
In the event of invalidity of any provision of this Agreement, the invalidity shall not affect the validity of the remaining portions of this Agreement.
Licensor's name, logos are trademarks of Licensor. All other trademarks used in the product or in associated materials are the property of their respective owners.
The license will terminate immediately without notice if you are in breach of any of its terms and conditions. You shall not be entitled to a refund from Licensor or any resellers of Licensor as a result of termination. The terms and conditions concerning confidentiality and restrictions on use shall remain in force even after any termination.
Licensor may revise these Terms at any time and the revised terms shall automatically apply to the corresponding versions of the Software distributed with the revised terms. If any part of these Terms is found void and unenforceable, it will not affect the validity of rest of the Terms, which shall remain valid and enforceable.
27 FORCE MAJEURE. The Licensor and or the Licensor's Associates shall not be liable for any failure or delay in performing services or any other obligations under this Agreement, nor for any damages suffered by the Licensee by reason of such failure or delay, which is directly or indirectly caused by strike, riot, natural catastrophe or other act of God, or any other cause beyond the Licensor's reasonable control.
28 MODIFICATION OF LICENSE AGREEMENT The Licensee acknowledges that the Licensee's use of the Service is subject to limitations established by the Licensor from time to time, and to modification of the Agreement, and that the Licensor may discontinue or revise any aspects of the Software or the Service from time to time.
The Licensor reserves the right to modify the terms and conditions of this Agreement from time to time, at its sole discretion and without advance notice, and the Licensee acknowledges the Licensor's rights in these respects and agrees thereafter to be bound by the modified Agreement, whether or not the Licensee has read those modified terms and conditions.
The Licensee acknowledges that the Licensee is responsible for regularly reviewing the current terms and conditions of the Agreement, including by reviewing the Agreement on the Licensor's website and by reviewing the Agreement in the Software, and the Licensee's continued use of the Service shall be deemed to be proof of the Licensee acceptance of the agreement to such modifications to the terms and conditions of the Agreement from time to time.