Last Updated: November 25th, 2022
SOFTWEIR END-USER LICENSE AGREEMENT
SoftWeir Inc. (“SoftWeir”, “we”, “us” and terms of similar meaning) provides the Services, including access to the Software subject to these user terms and conditions of service (these “Terms” or “Agreement”). An updated copy will be available through the Software and online.
Please read through these Terms carefully before using the Software. By accepting these Terms upon installing or signing into the Software, as applicable, by clicking a box indicating your acceptance, or if you otherwise use the Services, you agree to be legally bound by these Terms and all terms, policies and guidelines incorporated by reference into these Terms.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“CASL” means any applicable federal, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.
“Content” means any and all information, materials, graphics, tools, animations, assets, videos, photographs and other content made available to you through the Services, other than Your Data.
“Client” or “User” means the purchaser or User of the Services who entered into the License with SoftWeir.
“Documentation” means our online or print user guides, documentation, and help and training materials relating to the Services, as updated from time to time.
“License” means the applicable Services Terms and Conditions and all schedules attached thereto that was entered into by SoftWeir and the Client with respect to the purchase and license of the Services.
“Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
“Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), and any similar legislation enacted by any province or territory of Canada.
“Software” means the applicable software that is licensed to the Client as part of the Services in accordance with the License.
“Services” means the Software and all products and services that are provided by us or on our behalf in connection therewith.
“Third Party Providers” means any contractors, consultants and other third parties that are engaged (directly or indirectly) to assist with the development, maintenance and provision of the Services, including any third party engaged to host the Services or any client data.
“Trial Version”, also referred to as “Demo Version”, “Basic Educational Version”, “Beta Version”, or “Easy Game Creator”, means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software. These versions will contain certain limitations. For the purposes of these Terms, the terms “Trial Version”, “Demo Version”, “Basic Educational Version”, “Beta Version”, or “Easy Game Creator” are used interchangeably.
“you” or “your” means you and/or the company or other legal entity for which you are accepting this Agreement, and the brokers, agents, employees, and Affiliates of that company or entity.
“Your Data” means your data and any other data or information that you import into the Services.
2. THE SERVICES
SoftWeir, through the Services, is providing individuals and/or entities game and application creation services and software solutions.
3. LICENSE TO USE SERVICES AND LICENSE RESTRICTIONS
Provision of Services. Subject to your compliance with these Terms, we, along with our licensors, as applicable, will make the Software and Services available to you on a non-exclusive, revocable, non-transferable, non-sublicensable, limited basis during the Term.
Usage Restrictions. You will not (a) make the Services available to, or use the Software for the benefit of, anyone other than you; (b) make or distribute copies of the Software, sell, resell, license, sublicense, distribute, rent or lease the Software; (c) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Software in a manner that breaches the rights of any third party, any contract or legal duty or violate any applicable law; (e) use the Software to store or transmit viruses or other malicious software code; (f) interfere with or disrupt the integrity or performance of the Software or any third-party data contained therein; (g) attempt to gain unauthorized access to the Software or its related systems or networks; (h) share your password or other access credentials with anyone, or permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (i) copy the Software or any part, feature, function or user interface thereof; (j) copy Content except as permitted herein; (k) frame or mirror any part of the Services unless expressly provided as an embed code, or as permitted in the Documentation; (l) access or use the Services in order to build a competitive product or service; (m) reverse engineer the Software; (n) remove or modify any copyright, trademark or other proprietary notices that have been placed on the Software, except in connection with the permitted modification of assets for use in connection with the Services, of which the ownership and all rights related to such modified works are deemed to be the property of SoftWeir; (o) use the Services or Content other than for its intended purposes; or (p) use the Services to modify or create derivative works based on the Services or Content, except in connection with the permitted modification of assets for use in connection with the Services, of which the ownership and all rights related to such modified works are deemed to be the property of SoftWeir. In addition, unless you obtain our prior written consent, you may not access or use Services if you are our direct competitor, or for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes. Further, you will not (q) in the aggregate, install or use more than one copy of the Trial Version, (r) download the Trial Version under more than one username, (s) alter the contents of a hard drive or computer system to remove messages indicating that the Software installed is a Trial Version, (t) use the Trial Version for any ultimate commercial or production purpose, or (u) use the Trial Version for a purpose other than the sole purpose of determining whether to purchase a license to a commercial version, provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
Your Responsibilities. You will (a) be responsible for your compliance with these Terms, including compliance with all license and usage restrictions set forth in these Terms or the Documentation; (b) be responsible for the accuracy, quality and legality of Your Data and the means by which you acquired and imported Your Data; (c) keep your password and other access credentials confidential, and use commercially reasonable efforts to prevent unauthorized access to or use of the Services or any Content, and notify us promptly of any such unauthorized access or use; (d) use Services only in accordance with the Documentation and applicable laws and government regulations; (e) strictly comply with Privacy Laws, CASL and any other applicable laws; and (f) monitor and maintain any automated aspects of the Services to ensure compliance with your responsibilities under these Terms.
4. OUR PROPRIETARY RIGHTS
Reservation of Rights. Subject to the limited rights expressly granted hereunder, we and our licensors, as applicable, reserve all of our and our licensors’ right, title and interest in and to the Software, Services and the Content, including all of our related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
License to Content. We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license during the Term to access and use the Content, solely to the extent reasonably required in connection with your permitted use of the Services.
Feedback. You are not required to provide any feedback or suggestions relating to the Services. If you choose to provide any feedback or suggestions relating to the Services, you acknowledge and agree that we will have an unrestricted, perpetual, worldwide right to use such feedback and suggestions, without any obligation to obtain consent from you, provide attribution to you, or make any payment to you.
5. YOUR DATA
Ownership of Your Data. We acknowledge that you own Your Data, and we claim no rights to Your Data other than any rights granted in the License and these Terms or any other agreement between us and you (or between us and the customer to whom any such data relates) . You represent and warrant that you have the necessary rights and approval.
License to Your Data. You grant us and our licensors, and each of our and our licensors and Affiliates, a worldwide, non-exclusive, limited license to access, host, copy, transmit, modify and display Your Data for the purpose of (a) providing the Services to you, your company’s agents and Affiliates in accordance with these Terms; (b) providing other services to you, your company’s agents and Affiliates; (c) improving and developing the Services and our other products and services, and (d) for promotional purposes. You represent and warrant that (i) you own and control all of the rights to Your Data, or otherwise have the lawful right to post and distribute Your Data, to or through the Services; and (ii) the use and posting or other transmission of Your Data does not violate these Terms. Subject to the limited licenses granted herein, we acquire no right, title or interest from you or your licensors under these Terms in or to Your Data. You acknowledge that we and our licensors, and each of our and our licensors Affiliates, may sublicense these rights to our Third Party Providers for the purpose of allowing them to provide services to us.
Privacy Laws. If Your Data includes any Personal Information, you represent and warrant to us that (a) you have complied with all applicable Privacy Laws in connection with the collection, use and disclosure of such Personal Information, and the provision of such Personal Information to us complies with all applicable Privacy Laws, and (b) all individuals to whom such Personal Information relates have consented to our collection, use and disclosure of such Personal Information for the purposes disclosed in this Agreement and the Documentation.
6. LIMITED WARRANTY, REPRESENTATIONS, WARRANTIES, DISCLAIMERS AND INDEMNITIES
Disclaimers. EXCEPT FOR ANY LIMITED WARRANTY PROVIDED IN THE LICENSE AND AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE, SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS-IS” BASIS, AND WE MAKE NO REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED AND STATUTORY REPRESENTATIONS, WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE EXPRESSLY DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. WE DO NOT WARRANT THAT THE SERVICES ARE ERROR FREE OR THAT YOU OR ANYONE ELSE WILL BE ABLE TO ACCESS OR USE THE SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE SERVICES ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION. EXCEPT IN THE EVENT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, WE WILL NOT BE LIABLE FOR DAMAGES ARISING FROM ANY BREACH OF, UNAUTHORIZED ACCESS TO, MISUSE OF, LOSS OF, CORRUPTION OF, OR INTRUSION INTO, YOUR DATA.
Limitation of Liability. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT WILL WE HAVE ANY LIABILITY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Indemnification. You will defend us and our Affiliates and each of our directors, officers, employees, agents, contractors and representative (“Released Parties”) against any third party claim, demand, suit or proceeding made or brought against us and/or the Released Parties (a) by one of your customers or users (except to the extent the claim arises from our material breach of this Agreement or our gross negligence or willful misconduct), (b) that arises from any breach of this Agreement by you or any inaccuracy in any representation or warranty made by you, or (c) that alleges that Your Data, or your use of the Software, Services or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property or any other rights or violates applicable law. You will indemnify and hold us and the Released Parties harmless from any damages, losses, liabilities, costs and expenses (including reasonable legal fees) arising from such a claim, demand, suit or proceeding.
7. THIRD PARTY/OPEN SOURCE SOFTWARE
The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). These Third Party Licenses are made a part of an incorporated into these Terms. By accepting these Terms, you are also accepting the Third Party Licenses, if any, set forth therein. If you would like to view the Third Party Licenses prior to accepting this Agreement, please contact firstname.lastname@example.org.
8. TERMINATION AND MODIFICATION OF LICENSE
Subject to the License, we reserve the right, without notice and in our sole discretion, without any notice or liability or reimbursement to you, to (a) terminate your license to use the Software or Services, or any portion thereof; (b) block or prevent your future access to and use of all or any portion of the Software, Services or Content; (c) change, suspend or discontinue any aspect of the Software, Services or Content; and (d) impose limits on the Software, Services or Content.
9. PAYMENT AND TAXES
You shall pay to SoftWeir all applicable License fees for the Software as advertised prior to purchase. All License fees are due immediately prior to delivery of the Software.
Notices that we give you (other than notice of modification of these Terms, which is discussed in Section 11(g) 11(e)below) may be provided in any of the following ways. First, we may email you at the contact information provided upon purchase of the applicable License. Second, we may post a notice on the Software. It is your responsibility to periodically review the Software for notices.
Severability. If any term of this Agreement is invalid or not enforceable, it will not affect any other terms.
Assignment. You may not assign or transfer any of your rights under this Agreement, by operation of law or otherwise, without our prior written approval. Any attempt by you to assign or transfer any of your rights under this Agreement, without such consent, will not be effective. We may assign or transfer this Agreement, in our sole discretion, without restriction.
Waiver. A failure by a party to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representatives of the party granting such waiver. Except as expressly specified in this Agreement, any remedies specified in this Agreement will not limit any other remedies that may be available.
Governing Law. This Agreement is subject to the laws of the province of Ontario, Canada, without giving effect to conflicts of laws principles. The Parties hereby submit to the exclusive jurisdiction of the Ontario courts for any dispute arising out of this Agreement (it being understood that the foregoing will not affect Our rights to seek injunctive relief in any other jurisdiction, or to enforce any payment obligation in any other jurisdiction).
Entire Agreement. The License and these Terms states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement.
English Language. The parties confirm that it is their wish that these Terms, as well as any other documents relating to this Terms, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.
Modification of Terms. We may modify these Terms at any time. If we do so, we will post the modification on our website or via the Software, or provide you with notice of the modification. We will also update the “Last updated” date at the top of this document. You are responsible for checking these Terms whenever you access or use the Software. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services.
12. QUESTIONS AND COMMENTS
If you have any questions regarding these Terms or your use of the services, please contact us here: