1. USE OF THE SITES. Unless You have entered into a subscription, license or other agreement with Rogue Wave separate from this Agreement governing Your use of and access to a Site (an “OpenLogic Agreement“), Your use of the Sites is subject to the terms of this Agreement. If You have an OpenLogic Agreement with Rogue Wave, the terms in Your OpenLogic Agreement will control and supersede over the terms of this Agreement in the event of a conflict between the agreements. You may access the Sites solely for lawful purposes. You must be 13 years or older to use the Sites. Rogue Wave reserves the right at any time and in its sole discretion to modify, suspend, or discontinue any of the Sites (or any portion thereof) with or without notice.
2. TERM AND TERMINATION. This Agreement will be effective as to all Sites on the date You first use any Site and will continue until terminated. Rogue Wave may terminate this Agreement immediately, for any reason or no reason, with or without notice to You. You may terminate this Agreement upon written notice to Rogue Wave, such termination effective upon receipt of such notice by Rogue Wave. Rogue Wave may also suspend your use of any Site (or any portion thereof) with or without notice to You and with or without cause. Upon any termination of this Agreement, all rights granted to You under this Agreement will cease and You must promptly discontinue all access to any part of the Sites and the use of any Site Content (as defined below). Sections 2, 5, 6, 7, 8, 9, 10, 11, 14 and 15 will survive termination or expiration of this Agreement for any reason as they apply to the rights granted to Rogue Wave and the restrictions placed on You.
3.1 Site Content. The text, files, images, graphics, illustrations, documentation, information, data, audio, video, photographs and other content (collectively, “Content“) available on or offered through any of the Sites (such Content, collectively, “Site Content“) are protected by intellectual property rights, including, as applicable and without limitation, copyrights, trademarks, patents, trade secrets and other proprietary and intellectual property rights (“Intellectual Property Rights“) owned by Rogue Wave or its business partners, affiliates, contributors, licensors, and other third party providers (“Affiliates“). Except as expressly set forth in this Agreement, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Site Content, or any Intellectual Property Rights therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Site Content without the prior written permission of Rogue Wave. If you would like to use the Site Content in a manner that is not expressly set forth in this Agreement, please send your request to Rogue Wave at firstname.lastname@example.org.
3.2 Wazi Content. Unless otherwise noted on the Site operated by Rogue Wave at http://olex.openlogic.com/wazi/ or any successor web site thereto (the “Wazi Site“), You may use all Site Content available on or offered through the Wazi Site (such Content, “Wazi Content“) as specified in the Creative Commons Attribution License, provided that Your use of the Wazi Content is accompanied by a hyperlink back to the Wazi Site.
4. SOFTWARE. The open source and other software and code available on or offered through the Sites (“Software“) is protected by applicable Intellectual Property Rights owned by Rogue Wave or its Affiliates. All Software is made available to You under the terms of the open source or other form of software license or agreement accompanying or otherwise contained or referenced in or with the Software (“Third-Party License“). The terms of the applicable Third-Party License will apply to the Software independent of the terms of this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You that supersede, the terms of any applicable Third-Party License. Except as stated in any Third Party License, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software, or any Intellectual Property Rights therein or related thereto.
5. MARKS. Unless otherwise labeled, all trademarks, tradenames, service marks, logos, banners, and page headers displayed on the Sites (collectively, the “Marks“) are the property of Rogue Wave and its Affiliates. Except as expressly set forth in this Agreement, You may not display, link to, or otherwise use the Marks without the prior written permission of Rogue Wave.
6. POSTINGS AND UPLOADS. You may be allowed access through the Sites to various forums, comments, bulletin boards, chat rooms, or other opportunities through which You may provide or upload Content to the Sites (such Content, collectively, “Provided Content“). You agree not to upload or provide any Provided Content that is: (1) libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (2) an infringement or misappropriation of the Intellectual Property Rights of any third party; (3) illegal in any way or that advocates illegal activity; (4) false, misleading or deceptive; or (5) an advertisement or solicitation for funds, goods or services. If You provide or upload any Provided Content to the Sites that is not already subject to a Contributor Agreement with Rogue Wave (a “Contributor Agreement“), You grant Rogue Wave a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display that Provided Content throughout the world in any form, media, software, or technology of any kind. In addition, you waive all moral rights in that Provided Content or warrant that all moral rights applicable to such content have been waived.
7. CONDUCT. You will not and will not knowingly permit any third party to: (1) use the Sites to electronically harvest or collect information about users or other Content from the Sites; (2) use the Sites in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Sites; (3) use automated scripts to collect information from or otherwise interact with the Sites; (4) use the Sites to intimidate or harass any other people or entities; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of the Sites of any Software; (6) remove, bypass or circumvent any electronic protection measures on the Sites; (7) remove, alter, or obscure any copyright or other proprietary rights notices included on the Sites; or (8) upload to the Sites or provide to Rogue Wave any code or device capable of or intended to interrupt, harm or damage the Sites or the operation of the Sites.
8. CLAIMS OF INFRINGEMENT. Just as Rogue Wave requires users of the Sites to respect the copyrights and other Intellectual Property Rights of Rogue Wave, its Affiliates, and other third parties, Rogue Wave respects the copyrights and other intellectual property rights of users of the Sites and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on any of the Sites without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
Rogue Wave Software, Inc.
5500 Flatiron Parkway, Suite 200
Boulder, CO 80301
Please provide the following information to Rogue Wave’s Copyright Infringement Agent:
(1) the identity of the infringed work, and of the allegedly infringing work;
(2) Your name, address, daytime phone number, and E-mail address, if available;
(3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law;
(4) a statement of the accuracy of the notice and, under penalty of perjury, that You are authorized to act on behalf of the owner; and
(5) Your electronic or physical signature.
9. REPRESENTATIONS AND WARRANTIES. You hereby represent, warrant, and covenant for the benefit of Rogue Wave and its Affiliates that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement; (3) You own all right, title, and interest in and to any Provided Content that You provide or upload to the Sites, or that You have sufficient rights to grant Rogue Wave the rights therein under this Agreement to Rogue Wave; and (3) all information You provide to Rogue Wave in connection with this Agreement and Your access to the Sites and use of the Sites is correct and current.
10. DISCLAIMER AND LIMITATION OF LIABILITY.
10.1 Disclaimer. THE SITES AND THE SERVICES PROVIDED THROUGH THE SITES ARE PROVIDED BY ROGUE WAVE “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. NEITHER ROGUE WAVE NOR ITS AFFILIATES REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, OR OTHER INFORMATION DISPLAYED, DOWNLOADED FROM, OR DISTRIBUTED THROUGH THE SITES. UNDER NO CIRCUMSTANCES WILL ROGUE WAVE BE LIABLE IN ANY WAY FOR ANY CONTENT PROVIDED THROUGH THE SITES. YOU AGREE THAT YOUR ACCESS TO THE SITESIS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE SITES. EXCEPT WHERE THE LAWS AND REGULATIONS OF A PARTICULAR JURISDICTION CONCERNING WARRANTIES CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT, ROGUE WAVE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SITES, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE SITESAND INTERRUPTIONS, CRASHES, AND DOWNTIME BEYOND ROGUE WAVE’S CONTROL MAY OCCUR FROM TIME TO TIME.
10.2 Limitation. IN NO EVENT WILL ROGUE WAVE BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH YOUR ACCESS TO OR USE OF (OR YOUR FAILURE TO GAIN ACCESS TO OR USE OF) THE SITESOR ANY OF THE SERVICES PROVIDED THROUGH THE SITES, EVEN IF ROGUE WAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ROGUE WAVE’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100.
11. INDEMNIFICATION. You hereby indemnify, defend, and hold harmless Rogue Wave and its Affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties“) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Sites, the services offered through the Sites, the Site Content, or Your breach (or alleged breach) of any term of this Agreement. Rogue Wave will provide You with notice of any such claim or allegation, and Rogue Wave will have the right to participate in the defense of any such claim at its expense.
13. LINKED SITES. The Sites may contain links to third-party sites that are not under the control of Rogue Wave, and Rogue Wave is not responsible for any content on any linked site. If You access a third-party site from the Sites, then you do so at Your own risk. Rogue Wave provides links only as a convenience, and the inclusion of the link does not imply that Rogue Wave endorses or accepts any responsibility for the content on those third-party sites. Rogue Wave welcomes links to the Sites. You may establish a link to the Sites, provided that the link does not state or imply any sponsorship or endorsement of Your site by Rogue Wave or any group or individual affiliated with Rogue Wave. You may not use on Your site any Content or Marks appearing on the Sitesin establishing the link. You may not frame, mirror, or otherwise incorporate into another site the Site Content without the prior written permission of Rogue Wave.
14. NOTICES. Except as expressly stated otherwise, any notices required or allowed under this Agreement will be given to Rogue Wave by postal mail to the address for Rogue Wave listed on the Sites. If applicable law requires that Rogue Wave accepts e-mail notices (but not otherwise), then You may send Rogue Wave an e-mail notice by emailing Rogue Wave at email@example.com. With respect to Rogue Wave’s notices to You, Rogue Wave may provide notice by posting the notice on the Sites. Notices by Rogue Wave may include, without limitation, notice of amendments to this Agreement. You agree to check the Sitesfor those notices. In addition, or in lieu thereof, Rogue Wave may give notice by sending e-mail to any e-mail address You provide to the Sites. Notice shall be deemed given 24 hours after it is posted or an e-mail is sent, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
15. GENERAL TERMS.
15.1 Third-Party Beneficiaries. Rogue Wave’s Affiliates are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern Content to which they have rights.
15.2 Assignment. You may not assign, delegate or otherwise transfer this Agreement or any of Your rights hereunder, and any attempt to do so will be null and void. Rogue Wave may assign, delegate or otherwise transfer this Agreement or any of Rogue Wave’s rights under this Agreement to any third party with or without notice to You.
15.3 Integration. Unless You have entered into an OpenLogic Agreement or a Contributor Agreement, this Agreement sets forth the entire understanding of the parties and supersedes any and all prior oral and written agreements or understandings between the parties regarding the subject matter of this Agreement. This Agreement may not be modified except upon mutual written agreement of both parties. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
15.4 Severability. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability, without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
15.5 Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Colorado, USA, without giving effect to any conflict of laws principles. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You hereby irrevocably and unconditionally consent to the jurisdiction and venue in the state and federal courts sitting in Denver, Colorado USA. In any such dispute, the prevailing party will be entitled to recover its reasonable attorneys’ fees and expenses from the other party.
15.6 Modifications. Rogue Wave reserves the right, at any time and without notice, to add to, change, update, or modify the Sitesand this Agreement, simply by posting such addition, change, update, or modification on the Sites. Any such addition, change, update, or modification will be effective immediately upon posting on the Sites.