End User License Agreement (EULA)
December 17, 2009
This is a legal agreement concerning the use of the Software available through the Website and is between you, the end user, and Planetwide Games, Inc. (“Planetwide”). This Agreement supersedes all prior or contemporaneous agreements relating to the same subject matter. If you do not agree to these terms and conditions, you will not be permitted to use certain features of the Website.
The Software, including any updates, modifications, revisions, copies, and documentation, are copyrighted works, trade secrets and confidential information of Planetwide or its licensors who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. Planetwide grants to you, subject to your payment of all applicable license fees, a nontransferable, nonexclusive license to use the Software solely: (a) to create artwork, photographic or digital images, sketches, drawings, text and stitch files for your personal, non-commercial purposes; and (b) for the license term.
You shall take appropriate action to protect the confidentiality of the Software and ensure that any person permitted access to the Software does not disclose it or use it except as permitted by this Agreement.
Restrictions on Use
- You shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive from the Software any source code or the sequence, structure, organization of the code comprising the Software.
- You shall not sublicense, assign or otherwise transfer the Software, this Agreement or any of the rights under it, whether by operation of law or otherwise (“attempted transfer”), without Planetwide’s prior written consent. Any attempted transfer without prior written consent shall be a material breach of this Agreement and may, at Planetwide’s option, result in the immediate termination of this Agreement and the licenses granted under this Agreement.
- You shall not use the Software or Content (defined below) in connection with commercial endeavors, except as endorsed and approved by Planetwide in writing.
- The Software shall not be used to collect usernames or email addresses by any means for the purposes of sending unsolicited email.
- You shall not use the Software for unauthorized linking to or framing of the Website.
- You shall not use the Software to post, upload, email, or otherwise transmit any content that is or promotes racism, hate speech, threats, harassment, stalking, abuse, profanity, obscenity, libel, or invasion of privacy in any way.
- You shall not use the Software to upload, post, email, or transmit by any other means any content that infringes upon or violates any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any other person or entity, or which you do not have the right to transmit under any law, contract, or fiduciary relationship.
- You shall not use the Software to upload, post, email, or otherwise transmit anything that contains worms, viruses, or any other computer file, code, or program designed to disrupt, interrupt, limit, or disable any of the functionality of any of the Software or any hardware, or telecommunications equipment.
- You shall not use the Software to place an undue load on the Website, access the Website by any means other than as authorized by Planetwide, or attempt to access any area of the Website to which access is not authorized.
- You shall not use the Software to interfere with the normal functioning of the Website, or any servers, or network.
- You shall not use the Software to knowingly or unknowingly violate any applicable local, state, national, or foreign law or regulation.
- The terms of this Agreement including, without limitation, the licensing and assignment provisions, shall be binding upon your successors in interest and assigns. The provisions of this section (Restrictions on Use) shall survive the termination or expiration of this Agreement.
Planetwide hereby grants you, and you accept, a worldwide, non-exclusive, non-transferable, personal right to use and distribute, under the terms of this agreement, the “MashON” and “MashON Creator” logos or such additional or replacement button(s), logos, characters or designs as Planetwide or its licensors may provide under this Agreement (the "Trademarks"). You may use the Trademarks solely in conjunction with the permitted forms of use of the Software under this Agreement. Use of the Trademarks does not give you any right, title or interest in the Trademarks, other than the license rights granted herein. You may not assign, transfer or sublicense any trademark right granted herein without the prior written consent of Planetwide. You agree not to use the Trademarks in any way that will disparage Planetwide, its licensors or their products, injure Planetwide's or its licensors’ reputation for high quality or otherwise diminish or damage Planetwide's or its licensors’ goodwill in the Trademarks or infringe Planetwide's rights. You acknowledge the validity of the Trademarks and Planetwide's sole ownership of the Trademarks, and that Planetwide and its licensors (as applicable) retain all right, title and interest in and to the Trademarks. You recognize the value of the goodwill associated with the Trademarks, and acknowledge that such goodwill inures exclusively to the benefit of and belongs to Planetwide and its licensors. You shall employ best efforts to use the Trademarks in a manner that does not derogate from Planetwide's or its licensors’ rights in the Trademarks and will take no action that will interfere with or diminish Planetwide's or its licensors’ rights in the Trademarks. You may not use the Trademarks in any way as an endorsement or sponsorship by Planetwide or its licensors of any product or service. You agree not to adopt or use a trademark, service mark, or any other designation confusingly similar to the Trademarks. You agree to undertake such steps as Planetwide may reasonably request to assist in monitoring and maintaining the quality and form of use of the Trademarks. Planetwide may review your use of the Trademarks at any time to evaluate its compliance with the quality standards described in this Agreement. If, at any time, Planetwide determines that you are not maintaining adequate quality standards, you shall be considered in breach of this Agreement and subject to the termination provisions of this Agreement. You must immediately remedy all material deficiencies in its use of the Trademarks upon reasonable notice from Planetwide. Planetwide makes no warranties or conditions of any kind, either express or implied, with respect to the Trademarks. Planetwide will not be liable to you for any consequential, incidental, indirect, or special damages (including, without limitation, loss of profits) arising from or related to your use of the Trademarks, even if Planetwide has been advised of the possibility of such damages. If Planetwide provides you with a substitute Trademark(s), you shall bear all liability for continued use of the previous Trademark(s).
You agree to defend, indemnify and hold Planetwide and its third party content providers and licensors harmless from and against any and all claims, losses, costs, damages, expenses, or liabilities, including attorneys’ fees, arising out of or in connection with your use of the Software, Trademarks (including, without limitation, infringement of intellectual property rights or violation of publicity or privacy rights by any content or materials that you create, submit, post, publish or distribute) or Content. The provisions of this paragraph shall survive expiration or termination of this Agreement.
Intellectual Property Ownership; Copyright Protection
As between you and Planetwide, Planetwide and its licensors retain sole ownership of the Software, any and all derivative works that you make using the Software and any and all copies that you make of the Software or of such works or creations, including all associated intellectual property and property rights recognized anywhere in the world. The structure, sequence, and organization of the Software and the Software code are the valuable trade secrets and confidential information of Planetwide and its licensors. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Planetwide and its licensors.
Except as otherwise set forth in this Agreement, you shall be the sole owner of any and all artwork, photographic or digital images, sketches, drawings, text and stitch files that you create using the Software or that you save, submit and/or publish to or on the Website each, a “Creation” and, collectively, “Creations”); provided, however, that Planetwide, or its third party content providers or licensors, as applicable, shall own any and all Software, content provided by third parties that Planetwide makes available to you in connection with the Software ("Content") and Trademarks contained within your Creations. By making a Creation with the Software or uploading a Creation to the Website, you grant Planetwide and its third party content providers and licensors, a perpetual, irrevocable, royalty-free, non-exclusive, sublicenseable, transferable, fully-paid, worldwide right and license to (i) use, reproduce, publicly display, publicly perform, sell and distribute the Creation (a) in connection with the operation, maintenance, modification and commercial exploitation of the Website, (b) in or on physical and electronic products made on behalf of Planetwide (“Products”), and (c) in advertising, marketing, samples and promotional materials to promote the Website or any of the Products or otherwise to market, advertise, promote, or further the interests of the Website, its users, Planetwide and its third party content providers and licensors, and (ii) to make modifications to, and derivative works of, the Creation, and to permit Planetwide’s customers to do the same, as necessary to prepare the Creation for use in connection with the creation, production and ordering of Products. You acknowledge that Planetwide, and not you, shall have the sole authority to establish, in its sole discretion, the price of Products embodying or displaying any of your Creations that are sold or offered for sale through the Website or the website of any of Planetwide’s distribution partners. Further, you acknowledge and agree that you shall have no claim against Planetwide or any of its third party content providers or licensors with regard to any fees, monies or other consideration generated by Planetwide or such third party content providers or licensors through use of any of your Creations. To the extent any agreement between Planetwide and a third party content provider or licensor provides that such third party content provider or licensor is the sole owner of any Creation containing any Content or Trademarks, as the case may be, you hereby (i) agree to assign, and do hereby irrevocably assign, to Planetwide any and all right, title and interest that you have in such Creation and any and all intellectual property and proprietary rights therein, (ii) waive any and all moral rights that you have in such Creation, and (ii) appoint Planetwide as your agent and attorney-in-fact to take any and all necessary actions to effect such assignment. You agree that all Content and any derivative works based thereon is owned by the third party content provider that provided the Content and that the availability of the Content for purposes of making a Creation does not transfer any rights in Content to you.
Upon Planetwide’s request, you will provide Planetwide with true and correct information about your Creation (including, without limitation, title, description, tags and categories) sufficient to enable visitors of the Website to search for and locate Products embodying or displaying such Creation. If Planetwide reasonably determines that any information submitted by you in connection with a Creation is inaccurate or misleading or violates a third party’s rights, then Planetwide may modify or delete such information or remove your Creation from the Website.
Planetwide shall have no obligation to provide any support or maintenance of any of the Software or in connection with your use of the Software.
The Software is made available by Planetwide and the Content is made available by third party content providers for use “AS IS” and neither Planetwide nor any third party content provider make any warranty as to its use or performance. Further, in the event Planetwide provides you with a fix, workaround or update to the Software, neither Planetwide nor any of its third party content providers shall have any liability or obligation to you for any changes you need to make to any software, your computer or any other equipment in order to use the Software. PLANETWIDE AND ITS THIRD PARTY CONTENT PROVIDERS AND LICENSORS DO NOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SOFTWARE OR CONTENT, EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. PLANETWIDE AND ITS THIRD PARTY CONTENT PROVIDERS AND LICENSORS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUR LIMITATION NONINFRINGEMENT OF ANY PARTY’S RIGHTS, MERCHANTIBILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE OR CONTENT. The foregoing exclusions and limitations will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
Limitation of Liability
EXCEPT TO THE EXTENT THIS EXCLUSION OR RESTRICTION OF LIABILITY IS VOID OR INEFFECTIVE UNDER APPLICABLE LAW, IN NO EVENT SHALL PLANETWIDE OR ITS THIRD PARTY CONTENT PROVIDERS OR LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF PLANETWIDE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PLANETWIDE’S OR ITS THIRD PARTY CONTENT PROVIDERS' OR LICENSORS' LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100).
The Software is subject to regulation by local laws and United States government agencies, which prohibit export or diversion of certain products, information about the products, and direct products of the products to certain countries and certain persons. You agree that you will not export any Software or direct product of the Software in any manner without first obtaining all necessary approval from appropriate local and United States government agencies. This paragraph survives expiration or termination of this Agreement.
Governing Law, Jurisdiction and Dispute Resolution
This Agreement shall be governed by and construed under the laws of the State of California without regard to conflicts of laws principles. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the state and federal courts located in the County of Los Angeles, California. This section shall not restrict Planetwide’s right to bring an action against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You also agree that, in the event any dispute or claim arises out of or relating to your use of the Software, that you and Planetwide will attempt in good faith to negotiate a written resolution of the matter. You agree that if the matter remains unresolved for forty-five (45) days after notification (via certified mail or personal delivery) that a dispute exists, you and Planetwide join in mediation services in Los Angeles, California with a mutually agreed upon mediator in any attempt to resolve the dispute. Should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys’ fees, even if you would otherwise be entitled to them.
Term and Termination
This Agreement remains effective until its expiration or termination. This Agreement will immediately terminate upon notice if you exceed the scope of license granted or otherwise fail to comply with the provisions of this Agreement. Upon any termination or expiration of this Agreement, you agree to cease all use of Software and to delete and destroy all copies of the Software in your possession or entrusted to you.
The Software is a “commercial item,” as that term is defined in 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, any end user that is or acts on behalf of an agency or other instrumentality of the U.S. Government acquires only those rights in the Software and documentation that are expressly provided by this Agreement.
All requests and notices given by you to Planetwide under this agreement will be in writing and will be by certified or registered mail return receipt requested (or in the case of notices from Planetwide to you by email) and will be deemed given five (5) days after deposit in the mail, or upon sending of electronic transmission. Notices from you to Planetwide will be sent to Planetwide Games, Inc., 11150 W. Olympic Blvd., Suite 830, Los Angeles, CA 90064. Notices from Planetwide to you will be sent to the email address you provide to Planetwide with your registration to create an account. You warrant that the personal information you provide in connection with this agreement is accurate and current as of the date you provided such information.
Third Party Licensors
For any Software under this Agreement licensed by Planetwide from Adobe or other licensors, Adobe or the applicable licensor is a third party beneficiary of this Agreement with the right to enforce the obligations set forth herein.
Adobe Systems Agreement
The Software contains code distributed under a third party license agreement that may provide additional rights to you. Please see the applicable Software documentation for details. For any third party software licensed to use the Software licensed by you from Adobe or other licensors, Planetwide shall be a third party beneficiary of that Agreement with the right to enforce the obligations set forth therein.
If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.
You will monitor access to, location and use of the Software. With reasonable prior notice and during your normal business hours, Planetwide shall have the right to review your software monitoring system and reasonably relevant records to confirm your compliance with the terms of this Agreement, an addendum to this Agreement or U.S. or other local export laws. Planetwide shall treat as confidential information all of your information gained as a result of any request or review and shall only use or disclose such information as required by law or to enforce its rights under this Agreement or addendum to this Agreement. The provisions of this paragraph shall survive the expiration or termination of this Agreement.
The Software is currently provided free of charge, however, Planetwide reserves the right to charge you for the Software upon written notice. This Agreement may only be modified in writing by authorized representatives of the parties. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse. Your use of any Software signifies that you agree to this End User License Agreement and constitutes your binding acceptance of this End User License Agreement, including any modifications that Planetwide makes from time to time.
If you have any questions regarding this Agreement or you want to request any information from Planetwide, please contact Planetwide at firstname.lastname@example.org.
Lasted Updated: December 17, 2009