Last Revised: December 31, 2012
THE LICENSEE ("YOU") SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS: THIS UBB™ (THE "SOFTWARE" OR "UBB SOFTWARE") LICENSE AGREEMENT ("LICENSE") IS AN AGREEMENT BETWEEN YOU AND UBB Systems, LLC FOR THE USE OF THE UBB SOFTWARE. BY LICENSING AND INSTALLING THE UBB SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE (UNLESS YOU HAVE ENTERED INTO A DIFFERENT LICENSE AGREEMENT FOR THE SOFTWARE SIGNED BY UBB Systems, LLC AND THAT AGREEMENT PROVIDES THAT IT WILL GOVERN YOUR USE OF THE UBB SOFTWARE). IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL OR USE THE SOFTWARE. PLEASE NOTE THAT IF YOU HAVE A LEASED LICENSE, YOU MUST REMOVE THE UBB SOFTWARE AT THE CONCLUSION OF THE LEASE PERIOD, UNLESS YOU PROPERLY LICENSE THE UBB SOFTWARE.
1. License. Subject to the terms of this Agreement and full payment of the applicable license fees, UBB Systems, LLC hereby grants You a limited, non-exclusive, non-assignable, non-sublicensable (except as set forth in Section 5 below) license to install, use and copy the UBB Software once to provide a single bulletin board.
2. Copies; Notices. Except as provided in this Section 2, a separate license is required for each additional bulletin board instance. You may make a reasonable number of copies of the Software solely for emergency back-up, testing or archival purposes. These copies must not be publicly available. Further, You may load the Software onto another CPU server owned or operated by You on a hot "redundancy" basis. The ultimate result must be only one publicly accessible instance of the message board per license. The "Powered By" legend in the HTML title may be removed; however, the copyright and "Powered By" legends at the bottom of each page may not be removed. You may modify the positioning and colors, and/or remove the hyperlink to the UBBCentral.com website, as long as the legends remain readily perceptible to the human eye. Beyond these specific stipulations, You may not alter any proprietary notices and legends of UBBCentral that are contained in the Software, within the scripts and HTML generated by the scripts, and related documentation as delivered under this License. You acknowledge that any unauthorized removal or modifications of these notices or legends is a breach of this License.
3. License Restrictions. You may not: (a) reproduce or distribute all or any portion of the Software to any third party; (b) remove any proprietary notices from the Software or any copy thereof; (c) sell, assign, rent, transfer, distribute, act as a service bureau, or grant rights in the Software to any other person; (d) export or re-export the Software in violation of U.S. export laws; or (e) use the Software in violation of any applicable law, regulation or ordinance. Further, You may not use the Software or any related services to develop, generate, transmit or store information that: (i) infringes any third party's intellectual property or other proprietary right; or (ii) is illegal.
4. Copyright; Proprietary Rights. The Software is All Rights Reserved ©2009 UBB Systems, LLC, and is protected by United States and international copyright laws. Except for the limited license granted to You, UBB Systems, LLC reserves all right, title and interest to the Software and all associated icons and graphics, as well as the UBB Systems, LLC and UBB logos and trademarks (collectively, "UBB Systems, LLC Marks"). Title to and ownership of the Software and UBB Systems, LLC Marks, including without limitation all intellectual property rights therein and thereto, are and shall remain the exclusive property of UBB Systems, LLC and its suppliers. You shall not take any action to jeopardize, limit or interfere with UBB Systems, LLC's ownership of and rights with respect to the Software and/or UBB Systems, LLC Marks. You acknowledge that any unauthorized copying or use of the Software and/or UBB Systems, LLC Marks is a breach of this License.
5. Delivery and Installation. Unless otherwise agreed by UBB Systems, LLC in writing, You are solely responsible for delivery and installation of the Software. You may complete delivery and installation of the Software by accessing the Member Area. Upon receipt of full payment, UBB Systems, LLC will e-mail you a license number and password that will enable you to access the Member Area.
6. Member Area. Subject to the terms of this Agreement and full payment of the applicable license fees, You will be permitted free access to the Member Area of UBBCentral's website for a predesignated period of time following Your agreement to the terms of this License. In the Member Area, you may download current versions and upgrades of the Software, as well as future temporary fixes, programming temporary fixes, and updates. Thereafter, access to the Member Area is subject to Your purchase of an annual subscription. If your Member Area subscription lapses, and is not renewed, you are not eligible to download or otherwise receive copies of the software except by repurchase of a Member Area subscription. Except as specified herein and unless otherwise agreed in writing by the parties or unless You have opted to purchase support, UBB Systems, LLC is not obligated to provide training, maintenance or support of any kind for the Software. At its sole discretion and at any time, UBB Systems, LLC may discontinue the UBB Member Area, or any service or feature available through the Member Area.
7. Modifications to the Software. Subject to the terms and conditions of this License and during the effective term only of this License, You may alter and/or modify the Software and You may distribute or share any code modifications made by You in accordance with the terms set forth herein (independent of the Software, which may NOT be distributed or shared). You agree and acknowledge that any alteration or modification of the Software is made and used at Your own risk. No support is offered by UBB Systems, LLC for modified software. The foregoing restrictions shall survive the termination or expiration of this License.
8. Your Responsibilities. In addition to the other terms and conditions set forth in this License, You are responsible for providing and maintaining all equipment and Internet connections necessary to install and properly use the Software, including, without limitation, computer hardware and software, modems, and telephone and/or network services. UBB Systems, LLC does not access, control, edit or screen any message or posting content transmitted using the Software or related services; therefore, You are solely responsible for the receipt or transmission of any and all content using the Software and Your use of the Software.
9. Promotional Materials. You agree that UBB Systems, LLC may list the bulletin board You create using the Software in promotional materials and/or on UBBCentral's website.
10. U.S. Government Restricted Rights: This Software and documentation are provided with RESTRICTED RIGHTS. If used or acquired by the Government, the Government acknowledges that (a) the Software constitutes "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (b) the Government's rights are limited to those specifically granted to You, the licensee, pursuant to this Agreement. Manufacturer is UBB Systems, LLC at 318 E Marion Street, Aberdeen Wa 98520 USA.
11. Export Controls. The Software and all underlying information and technology is subject to U.S. export controls, including the Export Administration Regulations ("EAR", 50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. You are responsible for complying with all trade regulations and laws, both foreign and domestic.
12. Termination. UBB Systems, LLC may terminate this License if You fail to comply with the terms of this License or any applicable agreement relating to professional or other services UBB Systems, LLC may provide to you. You may terminate this License at any time by destroying or removing from all hard drives, networks, and other storage media all copies of the Software. Upon any termination, You must remove the Software from your computer equipment and destroy all originals and copies of the Software in your possession. The following sections shall survive any termination of this agreement and shall be effective in accordance with their terms: 3, 4, 7, 10, and 11 through 18.
13. Indemnity. You agree to indemnify, hold harmless and defend UBB Systems, LLC, at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by UBB Systems, LLC arising out of or relating to your (a) violation or breach of any term of this License, or (b) use or misuse of the Software.
14. Warranties. You represent and warrant that You are solely responsible for ensuring compliance with all applicable laws, including without limitation, the U. S. Children's Online Privacy Protection Act of 1998 ("COPPA"), 15 U.S.C. 6501 et seq, and that Ñ while use of the COPPA compliance tools contained in the Software does not guarantee COPPA protection (nor does UBB Systems, LLC's inclusion of such tools in the Software constitute UBB Systems, LLC's guarantee of COPPA protection) Ñ if appropriate, You will use the age screening and parental permission tools contained within the Software.
15. Refunds. UBB Systems, LLC does not accept any returns nor make any refunds for the Software. Notwithstanding the foregoing, You may return the Software and receive a refund if all of the following apply: (a) You have verified that your Web server meets UBB Systems, LLC's system requirements; (b) UBB Systems, LLC has been unable to install the Software on your server pursuant to a service agreement between You and UBB Systems, LLC; and (c) the request for a refund has been made within thirty (30) days of your purchase. Your refusal to permit UBB Systems, LLC to install the Software will void your right to a refund.
16. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED "AS IS" AND YOU ASSUME ALL RISK WITH ITS INSTALLATION, CONFIGURATION AND USE. THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY UBB Systems, LLC, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. FURTHER, UBB Systems, LLC DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR ANY RELATED SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, ACCURATE, COMPLETE, OR ERROR-FREE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE AND ANY ASSOCIATED SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
17. Limitation of Liability. YOU ASSUME ALL RISK ASSOCIATED WITH THE INSTALLATION AND USE OF THE SOFTWARE (INCLUDING WITHOUT LIMITATION ALL CONDUCT ASSOCIATED WITH BULLETIN BOARD ACTIVITY). IN NO EVENT SHALL UBB Systems, LLC BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, COMPUTER FAILURE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR PERFORMANCE OF ANY RELATED SERVICES, EVEN IF UBB Systems, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UBB Systems, LLC'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS LICENSE SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO UBB Systems, LLC FOR THE USE OF THE SOFTWARE. YOU HEREBY RELEASE UBB Systems, LLC FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
18. General Provisions. The terms set forth in this License and any related service agreements constitute the final, complete and exclusive agreement with respect to the Software and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this License shall nonetheless remain in full force and effect. Any term of this License may be amended and the observance of any term may be waived only with the written consent of the parties. The failure of UBB Systems, LLC at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. This License shall be governed by and construed in accordance with the laws of the STATE OF WASHINGTON without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of any state or federal court sitting in Seattle, Washington. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods shall not apply. If You have any questions concerning this License, please write to: email@example.com, or visit the website at www.ubbcentral.com.