Last updated: May 31, 2023
This Terms of Service (this “Agreement“) is by and between you (“Customer”) and Unity Web Agency, LLC, a North Carolina limited liability company (“Provider“). This Agreement governs your license of Provider products (“License”) and access to software support services provided by Provider (“Support”).
THIS AGREEMENT TAKES EFFECT UPON PAYMENT FOR THE SUPPORT SUBSCRIPTION (THE “EFFECTIVE DATE“). BY PAYING FOR THE SUPPORT SUBSCRIPTION YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SUPPORT.
- “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Provider may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software.
- “New Version” means any new version of the Software that Provider may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Provider’s designation of a new version number).
- “Refund Policy” is Provider’s policy regarding refunds (if any) that may be applicable to a particular type of Subscription.
- “Third-Party Products” means any products, content, libraries, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Software.
Software; Support; Updates
- Software. Provider hereby licenses the Software to Customer pursuant to the current version of the GNU General Public License (GPL) available at http://www.gnu.org/licenses/gpl.html.
- License Key: As a License holder of our products, you cannot distribute, freely give away, or resell your license key. You may not transfer the license key to a new owner without our prior written consent.
- Permitted Websites: You may only use your License on websites that you own or manage. You may use your License on a client site solely in situations in which you maintain an ongoing relationship with your client as a consultant or contractor. By using your license on a client site, you acknowledge and agree that your client will come to you for support and that we are not obligated to provide any Support directly to your client(s).
- Support: Throughout the Term of this Agreement, Provider shall provide Customer with email support for the Software covering general usage of the Software, installation, and configuration. All Support shall be provided in English. We do not provide support for add-ons, extensions, or other products, services, or code not otherwise provided by us. We do not provide customization support or services for our products as part of this Agreement. Customization can be categorized as changes that affect the appearance and/or functionality of how our products are offered. If you need customization support or services, our support team can provide a quote.
- Updates: Throughout the Term of this Agreement, Provider shall provide Customer with any and all Maintenance Releases and New Versions of the Software.
- Acceptable Use. The Support may not be used for unlawful, fraudulent, offensive, or obscene activity. Customer will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all of Provider’s guidelines and standards.
- Refund Policy. Customer shall comply with Provider’s applicable Refund Policy.
- Third-Party Products. The Software may permit access to or require the use of Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products.
Fees and Payment
Customer shall pay Provider the corresponding annual fees (“Fees“) for Support in accordance with the corresponding payment terms. Customer shall make all payments hereunder in US dollars. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
Intellectual Property Ownership; Feedback
As between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Support. If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Provider is free to use such Feedback irrespective of any other obligation or limitation between Customer and Provider governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assign to Provider on Customer’s behalf, and shall cause Customer’s employees, contractors, and agents to assign, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
Limited Warranty and Warranty Disclaimer
Provider warrants that it provides Support using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE SUPPORT ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SUPPORT, OR RESULTS OR THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees arising from or relating to any third-party claim, suit, action, or proceeding based on Customer’s negligence or willful misconduct or use of the Support in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Limitations of Liability
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Term and Termination
- Term. The term of this Agreement begins on the Effective Date and continues for one (1) year (“Term”). The Term shall automatically renew for subsequent annual terms unless the subscription is terminated in advance. Provider may increase the annual fee for any subsequent renewal term.
- Termination. In addition to any other express termination right set forth in this Agreement, either party may terminate this Agreement for any reason upon five (5) days’ advance notice.
- Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Support. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
- Survival. Any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination.
Governing Law and Jurisdiction
This agreement is governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina. Except as otherwise set forth herein, any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina in each case located in the County of Wake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by Provider with respect to a breach of this Agreement by Customer or others does not constitute a waiver and will not limit Provider’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred for any reason whatsoever without Provider’s prior written consent and any action or conduct in violation of the foregoing will be void and without effect. Provider expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.