THIS SOFTWARE LICENSE AGREEMENT is between you (“Licensee”) and Nimbus Web, Inc., a Delaware corporation (“Licensor”). LICENSEE’S DOWNLOADING AND USE OF THE SOFTWARE (AS DEFINED BELOW) CONSTITUTES LICENSEE’S BINDING CONSENT TO THIS SOFTWARE LICENSE AGREEMENT.
1. License Grant
1.1 Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a nonexclusive, non-sub licensable, and nontransferable license (the “License”) only for Licensee's own use or internal business operations: (i) to use the Nimbus Capture Solo License (the “Software”) subject to all of the terms of this Agreement; (ii) to use the documentation related to the Software solely for purposes of supporting Licensee’s use of the Software and in accordance with the terms of this Agreement and Exhibit A hereto; (iii) to download, install and implement the Software on Licensee’s computer(s) or in Licensee’s internal business operations; and (iv) to make a copy of the Software for archival, emergency back-up, testing, or disaster recovery purposes, provided that such back-up copy is not used for other purposes and is destroyed when Licensee loses the right to use the Software or when the License is terminated in accordance with this Agreement.
1.2 This License is limited for operation only and Licensee may not transfer or assign any of the rights granted to it under this Agreement, the License, or any of its obligations pursuant hereto without Licensor’s express prior written consent. Notwithstanding the foregoing, Licensee may transfer its rights and obligations under this Agreement and the License without the prior written approval of Licensor in the case of a transfer of substantially all of Licensee's business, subject to the following conditions: (i) that such transfer be made in favor of the transferee of such business, (ii) that the transferee agrees in writing to be bound by the terms hereof in a form acceptable to Licensor prior to such transfer, and (iii) that the transferee is not a competitor of Licensor.
1.3 The License rights granted in Clause 1.1 of this Agreement are subject to the following restrictions:
(i) Licensee may not, and will not permit others to, reverse engineer, disassemble, compile, decompile the Software, or otherwise attempt to derive the source code of the Software; further, Licensee shall not use the Software to develop commercially competitive products;
(ii) Licensee may not disclose, distribute or otherwise make available the Software to any third party;
(iii) Licensee may not rent, lease, sublicense, assign, sell or otherwise transfer the Software, or use the Software for commercial time-sharing, outsourcing, application service provider or service bureau use, unless previously agreed to in writing by Licensor or except as specifically provided herein;
(iv) Licensee may not modify, translate or create derivative works of the Software;
(v) with regard to any and all copies of the Software, updates and documentation, Licensee shall ensure that each copy contains all titles and trademarks and all copyright and restricted rights notices as in the original, and all such copies shall be subject to the terms and conditions of this Agreement; and
(vi) the number of users using or otherwise accessing the Software shall at all times be limited to one (1), and the number of devices shall be limited to two (2).
1.4 Licensee shall not be entitled to receive any updates of the Software unless Licensee enters into a separate License for said updates with Licensor, pursuant to which Licensee shall pay a separate license fee for the updates.
2.1 Licensee shall make one-time payment of $14.99 USD to Licensee for grant of License under Clause 1.1 hereabove by wire transferring funds or making it readily available to Licensor within three (3) days from the Effective Date of this Agreement. This license fee shall be non-refundable.
3. Limited Warranty
3.1. Licensor warrants and represents to Licensee that it has the right to license the Software to Licensee.
3.2 Licensor further warrants that for thirty (30) days following the download of the Software by Licensee, the Software will perform substantially in accordance with the specifications set forth in Exhibit A. Notwithstanding the foregoing, this limited warranty shall not apply in the following cases: (i) Licensee’s computer or hardware deficiencies; (ii) malfunctions, defects, or failures resulting from misuse, abuse, accident, neglect, improper installation, operation or maintenance, theft, vandalism, acts of God, acts of terrorism, power failures or surges, casualty, alteration, non-perrnitted modification, or repairs by any party other than Licensor; or any other third parties' or Licensee’s actions or causes beyond Licensor’s reasonable control; (iii) any defect not made known by Licensee to Licensor as soon as practical after the defect first appears or within the applicable warranty period; (iv) incompatibility caused by hardware and/or software components installed on Licensee’s computer; (v) the Software is not installed or used in accordance the specifications set forth on Exhibit A and this Agreement; and (vi) Licensee modifies the Software or adds other software that interferes with its operation.
3.3 Licensee acknowledges, accepts and agrees that no software is error-free and Licensee is advised to back-up its computer(s), with frequency and reliability suitable for Licensee.
3.4 Licensor’s sole liability and Licensee’s sole and exclusive remedy for breach of the above warranty shall be, at Licensor’s option, to either (i) refund the purchase price paid by Licensee for the Software, if any; (ii) replace the defective Software with a new compliant Software, in which case such new Software shall be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer; or (iii) repair or correct the nonconformity or defect reported in writing to Licensor during the applicable warranty period; provided that Licensee provide Licensor with sufficient information (which may include access to Licensee's computer system for use of Licensee's copy of the Software by Licensor or its designee) to reproduce the defect in the Software. Licensor needs not treat minor discrepancies in the Software description provided in Exhibit A as errors in the Software.
3.5 THE SOFTWARE IS PROVIDED “AS IS” AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED (WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ASSUMES THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, THE LICENSOR MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL LICENSEE’S REQUIREMENTS WHETHER OR NOT DISCLOSED TO THE LICENSOR.
4. Limitation of Liability
4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LICENSOR, ITS DIRECTORS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, FOR CORRUPTION, DAMAGE AND LOSS OF DATA OR PROGRAMS, FOR ECONOMIC LOSS, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, OR ARISING OUT OF ANY BREACH OF CONTRACT OR ANY TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION, ANY STRICT LIABILITY OBLIGATION OR DUTY), OR ANY BREACH OF STATUTORY DUTY, OR ANY BREACH OF WARRANTY OF THE LICENSOR, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 Licensee agrees that in the event the Licensor is found liable, the maximum cumulative liability of Licensor to Licensee for all claims relating to the Software and this Agreement, in warranty, contract, tort, or otherwise, shall not exceed the total amount of all fees paid to Licensor by Licensee pursuant to the terms of this Agreement.
5. Title, Retention of Rights and Intellectual Property
5.1 Licensee acknowledges that the Software, all intellectual property related thereto and all other items delivered by Licensor under this Agreement, shall remain the exclusive property of Licensor and its successors and assignees. Licensee acknowledges that it has no right to or interest in the Software other than as expressly granted herein. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Without limiting the generality of the foregoing, Licensee acknowledges and agrees that if Licensee suggests any new features, functionality, or performance for the Software that Licensor subsequently incorporates into the Software, the Software incorporating such new features, functionality, or performance, and all intellectual property related thereto, shall be the sole and exclusive property of Licensor. If Licensee creates a unique customized interface for the Software using Licensor tools and based upon Licensee’s proprietary information, Licensee shall own its own proprietary portions of such customized interface subject to Licensor’s underlying rights in and to the Software, provided that such customized interface shall be used solely for Licensee’s own internal business purposes.
5.2 Licensee further agrees that the Software and its updates, systems, methods of operation, configurations, documentation and other information contained in the Software, are proprietary intellectual property and/or the valuable trade secrets of Licensor and are as such protected by national and international copyright, trade secret, trademark and patent laws. This Agreement or Licensee’s possession, installation or use of the Software does not transfer to Licensee any title in such intellectual property in the Software and Licensee acknowledges that the License granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement.
6.1 If Licensee neglects or fails to perform or observe any of its obligations under this Agreement, including, without limitation, if Licensee uses the Software in violation of the provisions of this Agreement, or permits the Software to be used by any unauthorized third party, Licensor, in addition to other legal remedies it may have, may terminate this Agreement and the License granted hereunder upon fifteen (15) days written notice to Licensee.
6.2 Upon the termination of this Agreement, for any cause, Licensee shall immediately discontinue the use of the Software and destroy or return to Licensor all copies of the Software in its possession.
6.3 Licensee shall, upon written request by Licensor, deliver a certificate stating Licensee has not: (i) made or distributed, or failed to prevent others from making or distributing, copies of the Software (except as expressly permitted by this Agreement), or derivations or modifications thereof; (ii) used the Software in violation of the provisions of this Agreement; (iii) permitted to use the Software by any unauthorized third party. Any such certificate shall be executed by an authorized officer of Licensee acceptable to Licensor.
7.1 Failure of either party to insist upon strict performance of any provision of this Agreement or the failure of either party to exercise any right or remedy to which it is entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this Agreement. No waiver of any of the provisions of this Agreement shall be effective unless it is expressly stated to be such and signed by both parties.
7.2 Any amendment made to this Agreement will have no force or effect whatsoever unless it is in writing and signed by each of the parties hereto.
7.3 This Agreement shall be construed in accordance with the laws of the State of Delaware.
7.4 Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the single arbitrator mutually acceptable to both parties to this Agreement. Each party to the dispute may propose the arbitrator candidate. If a party does not object to the candidate proposed by the other party within thirty (30) days, the proposed candidate shall hear the dispute. If the parties cannot agree on the arbitrator, the arbitrator shall be appointed by the American Arbitration Association (“AAA”), and the arbitration shall be administered by the AAA in accordance with its Commercial Arbitration Rules. The judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be within the State of Delaware. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The prevailing party in any arbitration hereunder shall be entitled to payment of its reasonable attorneys’ fees and costs by the other party.
7.5 To the extent that any law by its terms as determined by a governmental authority of competent jurisdiction is in conflict with this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by the terms required by such law, statute, treaty, or regulation. If any provision of this Agreement shall be otherwise unlawful, void, or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. In either case, the remainder of this Agreement shall continue in full force and effect.
7.6 Each party has read this Agreement, has had the opportunity to obtain independent legal advice, agrees to be bound by it, and agrees that it constitutes the entire Agreement between the parties with respect to the subject matter hereof, superseding all proposals, negotiations, and communications, oral or written, between the parties with respect to the subject matter hereof, including any Licensee purchase order or other instrument to the extent inconsistent herewith.
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