Blue Breeze End User License Agreement for app-stitch and related channels

(Last Updated June 11th, 2014)

IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE BY BLUE BREEZE THROUGH THIS WEB SITE (HTTP://WWW.APP-STITCH.COM) OR OTHERS. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “You”), AND BLUE BREEZE SOFTWARE, INC (“BLUE BREEZE”, “APP-STITCH”, “APP-STITCH.COM” or “Licensor”). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AT THE BOTTOM OF THIS AGREEMENT IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CHECKING THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AND/OR BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY BLUE BREEZE THROUGH THIS WEB SITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY AND (5) YOU OR (TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY) YOUR COMPANY DO NOT CREATE, SELL OR OTHERWISE DISTRIBUTE ANY SOFTWARE PRODUCTS THAT COULD REASONABLY BE CONSIDERED A DIRECT COMPETITOR OR REPLACEMENT FOR APP-STITCH, RELATED CHANNELS OR ANY OTHER PRODUCT COMMERCIALLY OFFERED BY BLUE BREEZE, AT THE TIME OF AGREEMENT OR WITHIN THE NEXT FIVE (5) YEARS.

1. Software License

1.1 License Grant. Subject to the terms and conditions set forth in this Agreement, Blue Breeze hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, non-exclusive license (the “License”) to use the Blue Breeze computer software identified as ‘app-stitch’ and any related channels, updates, upgrades, modifications and error corrections thereto provided to Licensee (the “Programs”) and any accompanying documentation (the “Documentation”, together with the Programs, collectively the “Software”) in object code form only. Which version of the License applies is determined at the time of the License purchase.

1.2 Scope of Use. The Software is licensed, not sold, on a per-seat basis. You may only allow the number of individuals in Your organization to use the Software that corresponds to the maximum number of License seats You have purchased from Blue Breeze hereunder. A License seat is not bound to an individual and can be transferred between developers. This means that at any given time, the number of individuals authorized to use the Software under the License (each a “Licensed Developer”) cannot exceed the number of License seats that You have purchased from Blue Breeze and for which You have paid Blue Breeze all applicable License Fees pursuant to this Agreement. Software is in “use” on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard disk or other storage device) of that computer for development purposes, even if this developer is actively developing an unrelated part of the same software or any other software which is sold as a single ‘product’ or ‘unit’ with software where app-stitch is installed. Your Licensed Developers may install the Software on multiple machines, so long as the Software is not being used simultaneously for development purposes at any given time by more Licensed Developers than You have seats.  You are not limited by the number of License seats with respect to how many individuals within Your organization may access and use the Software for purposes other than development (e.g. testing purposes).

1.3 Trial License

1.3.1 License Grant. If You use app-stitch under the free Trial License, then, subject to the terms and conditions set forth in this agreement, Licensor hereby grants to Licensee and Licensee hereby accepts a license for evaluation purposes only. You are authorized to install, copy, and use the Software for the sole purpose of testing its functionality. You are not allowed to use it for any commercial or productive purpose. The term of the Trial License shall be 30 days.

1.3.2 Support Package Fair Usage Policy. 
Blue Breeze may limit or terminate Your access to any or all of the support services available under the “Blue Breeze” support package if Your use of the support services is determined by Blue Breeze, in its sole and reasonable discretion, to be excessive.

1.4 Commercial License with Updates and Support. If You purchase an app-stitch License with Updates and Support, then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a License to install and use the Software in object code form only. In addition, for the applicable period before the expiration date agreed upon when You purchased the License for the Software (the “Subscription Period”), You will receive minor and major updates for the Software, as well as the Support Package, each as described in further detail below.

1.4.1 Support Package. During the Subscription Period, You are entitled to the Support Package, subject to the limitations and restrictions described in the following Fair Usage Policy.

1.4.1.1 Support Package Fair Usage Policy. Blue Breeze may limit or terminate Your access to any or all of the support services available under the Support Package if Your use of the support services is determined by Blue Breeze, in its sole and reasonable discretion, to be excessive.

1.4.1.2 In no event will Blue Breeze provide support of any kind to end-users of Your Integrated Products.

1.5  Non-Commercial License.  Blue Breeze reserves the right to provide certain individuals, organizations, groups or companies with a complementary, non-commercial license.  These licenses are given for a specific purpose which will be named when the License is delivered, cannot be transferred and cannot be used for any other purpose.  The Licenses are subject to the same terms as the Commercial License with Updates and Support, except when stated otherwise in the documentation accompanying the delivery of this License.

1.6 Channels.

1.6.1 Channels are extensions that add additional functionality to the app-stitch core product.

1.6.2 Unless a channel is installed as part of the app-stitch core installation, or otherwise mentioned, Licenses for channels must be bought separately. They are subject to this same License agreement, possibly in addition to their own License agreements which will be communicated at the time of purchase.

1.6.3 Blue Breeze will make a selection of Channels available via the app-stitch channels store.  You are not allowed to purchase, install or in any way use any 3rd party channel unless you have purchased a License for the channel via the app-stitch channels store.

1.6.4.1 You can create additional channels to extend app-stitch’s functionality to fit Your needs. You are not allowed to create any channel if Blue Breeze offers a commercial channel in its channels store at that time, which could provide the same functionality.  You are not allowed to distribute any channels You have engineered or significant parts thereof, compiled, as plain source code or in any other form, except by reselling them via the app-stitch channels store.

1.6.4.2 Contact Blue Breeze via email at info@app-stitch.com if you are interested in becoming a partner and reselling Your channels via the app-stitch channels store.  Blue Breeze reserves the right to refuse any candidates, with or without motivation of its decision.
1.7 Updates. During the Trial and/or Subscription Period You are eligible to receive all updates for the version of the Software that You license hereunder. Updates replace and/or supplement (and may disable) the version of the Software that formed the basis for Your eligibility for the update. You may use the resulting updated Software only in accordance with the terms of this Agreement. Subscription renewals will be governed by the terms of this Agreement. Minor and major software updates will be made available publicly.  Blue Breeze does not make any commitments or guarantees about these updates, their contents or frequency.
1.8 Subscription period. All Licenses are only valid between the day the License was purchased and the expiration date mentioned on the License (the “Subscription period”).  During.  After this period, you are not permitted to continue to use the Software at any time unless you purchase a new License (“use” as described in 1.2).  Blue Breeze offers discounted prices for License renewals, but retains the right to change that price at any time without prior notice.  Blue Breeze develops all their products, including app-stitch, with a built-in mechanism which prevents its use after the Subscription period, until the License is renewed.
2. License Limitations

2.1 
At no time may the Software be used for development purposes by other individuals than the Licensed Developer(s).

2.2 
You are not allowed to redistribute, resell, transfer, rent, lease, or sublicense the Software or Your associated rights.  You are not allowed to store your license information in a place that is accessible by individuals outside of your company, including, but not limited to, using app-stitch in an open source project.

2.3 You may not use the app-stitch or Blue Breeze product names, logos or trademarks to market Your end products, except when it is obviously inferable that these product names, logos or trademarks are not owned by You, and there is a visual, unambiguous reference http://www.app-stitch.com.

2.4 Except to the limited extent as is permitted by law notwithstanding contractual prohibition, You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of Software that is provided to You.

3. Delivery

Blue Breeze shall make the Software available for download by Licensee a master copy of the Software licensed hereunder in electronic files only.

4. Collection and Use of Data.

Blue Breeze may use tools to deliver certain Software features and extensions, identify trends and bugs, collect activation information, usage statistics and track other data related to your use of the Software. By Your acceptance of the terms of this Agreement and/or use of the Software, You authorize the collection, use and disclosure of this data for the purposes provided for in this Agreement.  Blue Breeze will never share this information with any third party.

5. Term and Termination

This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. Unless otherwise specified in this Agreement, the License granted hereunder shall last as long as You use the Software in compliance with the terms herein. Unless otherwise prohibited by law, and without prejudice to Blue Breeze’s other rights or remedies, Blue Breeze shall have the right to terminate this Agreement and the License granted hereunder immediately if You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Blue Breeze.. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use of the Software. You must also destroy all copies of the Software.

6. Product Discontinuance

6.1 Blue Breeze reserves the right to discontinue the Software or any component of the Software, whether offered as a standalone product, a bundled set of products, or solely as a component, at any time. However, Blue Breeze is obligated to provide support in accordance with the terms set forth in this Agreement for all such discontinued Software, bundle, or components for a period of one year after the date of discontinuance.

6.2 In the event that Blue Breeze discontinues the Software or any component of the Software, each and every Licensor will be provided with a copy of the source code that forms the Software, accompanied by and subject to acceptance of its own license agreement.

7. Intellectual Property

All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, or text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Blue Breeze that are used in connection with the Software are and shall at all times remain exclusively owned by Blue Breeze and its licensors. All title and intellectual property rights in and to the content that may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content. Any open source software that may be delivered by Blue Breeze embedded in or in association with Blue Breeze products is provided pursuant to the open source license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license. As required by the Common Public License (“CPL”), if a user wishes to obtain the source code for the components licensed under the CPL a user may access them at http://wixtoolset.org.

8. Limited Warranty

Blue Breeze warrants solely that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days after the date on which You purchase the License for the Software. Blue Breeze does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Licensee’s failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than Blue Breeze. In the event of a breach of warranty, Licensee’s sole and exclusive remedy and Blue Breeze sole and exclusive obligation, is repair of all or any portion of the Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and Blue Breeze maximum liability shall be a refund of the paid purchase price for the License of the defective Software only. This limited warranty is only valid if Blue Breeze receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, app-stitch IS PROVIDED “AS IS” WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Blue Breeze DOES NOT WARRANT THE OPERATION OF ITS OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE. YOU BEAR THE ENTIRE RISK AS TO THE RESULTS, QUALITY AND PERFORMANCE OF THE SERVICE SHOULD THE SERVICE PROVE DEFECTIVE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A Blue Breeze AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE LICENSE AGREEMENT.

9. Limitation of Liability

THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL Blue Breeze OR ANY OTHER PERSON WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF app-stitch AND ITS OFFERINGS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR OTHER DAMAGES OF ANY CHARACTER ARISING OUT OF THE LICENSING AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, LOSS OF DATA, LOSS OF PROFITS, LOSS OF ASSIGNMENTS, SPONTANEOUS COMBUSTION OF HOSTING HARDWARE, DATA OR OUTPUT FROM THE SERVICE BEING RENDERED INACCURATE, FAILURE OF THE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS, SERVER DOWN TIME, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES OF WHATEVER NATURE, EVEN IF Blue Breeze HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Indemnity

You agree to indemnify, hold harmless, and defend Blue Breeze and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney’s fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from Your use or misuse of the Software.

11. Confidentiality

Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that: (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, Licensee shall treat any source code for the Software as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without Blue Breeze’s prior written permission. Each party’s obligations under this Section 11 shall apply at all times during the term of this Agreement and for five (5) years following termination of this Agreement, provided, however, that (i) obligations with respect to source code shall survive in perpetuity and (ii) trade secrets shall be maintained as such until they fall into the public domain.

12. Governing Law

This License will be governed by the law of the Commonwealth of Texas, U.S.A. without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Dallas, Texas, U.S.A., and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.

13. Entire Agreement

This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect. The terms and conditions contained in this Agreement shall prevail over any inconsistent provisions in any form or other paper submitted by Licensee.

14. No Assignment

You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Blue Breeze’s prior written consent.

15. Survival

Any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.

16. Severability

If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.

17. Force Majeure 

Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.

18. Export Classifications

You expressly agree not to export or re-export Blue Breeze’s Software or Your Integrated Product to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges.

19. Commercial Software

The Programs and the 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 reserved under the copyright laws of the United States.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN BLUE BREEZE AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.