BlueSkies End-User License Agreement

 

REVISED: May 12, 2017

 

BLUESKIES is owned and developed by AgileSRC LLC (HEREAFTER REFERRED TO AS BLUESKIES).

 

SOFTWARE LICENSE AGREEMENT (EULA AND TERMS OF SERVICE)

 

NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING, COPYING OR DISTRIBUTING ALL OR ANY PORTION OF THE BLUESKIES SOFTWARE ("SOFTWARE") YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE, TRANSFERABILITY, WARRANTY, AND LIABILITY. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.

 

BlueSkies and its suppliers own all intellectual property in the Software. BlueSkies permits you to Use the Software only in accordance with the terms of this Agreement. Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement.

 

Definitions. "Software" means (a) all of the contents of the files (provided either by electronic download, on physical media or any other method of distribution), disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to (i) BlueSkies or third party computer information or software; (ii) related explanatory written materials or files ("Documentation"); (iii) fonts (iv) images and/or icons; and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by BlueSkies (collectively, "Updates"). "Use" or "Using" means to access, install, download, copy, or otherwise benefit from using the functionality of the Software in accordance with the Documentation. "Permitted Number" means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by BlueSkies. "Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions. User refers to the end user of the product and/or purchaser.

 

1. CHANGES IN TERMS AND SERVICE.

 

WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME. ANY CHANGES WILL BE EFFECTIVE UPON POSTING OF THE REVISIONS ON THE SITE OR WITHIN THE SOFTWARE REFLECTING THE NEW EFFECTIVE DATE. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE POSTING OF THE CHANGES ONLINE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. YOU SHOULD FREQUENTLY REVIEW THE AGREEMENT (INCLUDING THE EFFECTIVE DATE) AND APPLICABLE POLICIES FROM TIME TO TIME TO UNDERSTAND THE TERMS THAT APPLY TO YOUR USE OF THE SERVICE AND/OR USE OF THE SITE.

If we make any material changes to this Agreement that, in our sole judgment, would have an adverse effect on your use of the Service, we will either post a notice on the Site that this Agreement has changed and the effective date of such change, provide you a notice describing such changes and their effective date, in the manner described in subsection 1.B. below, or send you the revised Agreement. In the event of any potential conflict between this Agreement and the terms of any offer for the Service, this Agreement will govern.

 

1.A. Notices:

 

Notices to you will be deemed given when deposited in the mail or when sent by email. Notices may be included in statements or other communications to you. We may also provide notice to you by telephone, which will be deemed given when a message is left with you, someone answering the telephone at your residence or on an answering machine or voice mail system at your phone number on record with us. Your notices to us will be deemed given when we receive them at the telephone number or, in writing at the address, set forth above at CONTACT INFORMATION.

 

2. Software License

 

If you obtained the Software from BlueSkies or one of its authorized licensees or resellers, and subject to your compliance with the terms of this agreement (this "Agreement"), including any restrictions stated below, BlueSkies grants to you a non-exclusive license to Use the Software for the purposes described in the Documentation as follows.

 

2.A. General Use.

 

You may install and Use a copy of the Software on your compatible Computer, up to the Permitted Number of computers. No other use is permitted. Use of BlueSkies / Sliverlinings outside of Unity is a violation of this EULA.

 

2.B. License Descriptions.

 

A License is defined as a single site location (single address) with just one (1) associated business name. A single BlueSkies license is per project any usage beyond these limits would require prior authorization from AgileSRC LLC. Abuse of our license terms would be a violation of this ELUA and will be prosecuted to the fullest extent of the law.

 

3. Distribution.
 
3.A. Backup Copy.

 

You may make one backup copy of the Software, provided your backup copy is not installed or used on any Computer. You may not transfer the rights to a backup copy unless you transfer all rights in the Software. Transfers must be authorized by BlueSkies.

 
3.B.

 

The Software will only be used on the machine for which it is registered. No other installations are permitted.

 
4. No Modification
 
4.A.

 

You may not modify, adapt, translate or create derivative works based upon the Software. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software.

5. Termination
 
5.A.

 

Without prejudice to any other rights, BlueSkies may cancel this EULA if you do not abide by the terms and conditions of this EULA, in which case you must destroy all copies of the Product and all of its component parts.

 
5.B.

 

Violations of any part of this agreement will lead to termination of services and rights to use BlueSkies software.

 
6. Export Restrictions
 
6.A.

 

You acknowledge that the Product is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.

 
7. Update Terms
 
7.A.

 

All UPDATES shall be considered part of the Product and subject to the terms and conditions of this EULA. Additional license terms may accompany UPDATES (as defined in the first paragraph of this EULA). By installing, copying, or otherwise using any UPDATE, you agree to be bound by the terms accompanying each such UPDATE. If you do not agree to the additional license terms accompanying such UPDATES, do not install, copy, or otherwise use such UPDATES.

 
8. Transferability
 
8.A.

 

This agreement does not permit the Software to be transferred unless authorized by BlueSkies.

 
9. Support
 
9.A.

 

BlueSkies provides an initial 90 days of email support for software and hardware purchased directly from AgileSrc LLC.

 
9.B.

 

BlueSkies does not support or provide warranties for any third party software or hardware, including but not limited to operating systems, printers, computers, network equipment, and broadband services please contact your supplier or manufacturer for assistance.

 
10. Applicable State/Federal/International Laws
 
10.A.

 

All users agree to uphold and abide by any and all Local, State, Federal or International laws including, but not limited to selling, processing or handling gift, loyalty or membership programs. You take full responsibility for all regulatory compliance including, but not limited to reporting, collection, refunds or abandoned property.

 
10.B.

 

You further agree to hold BlueSkies harmless should you be found in violation of any laws or regulations. The user is fully responsible for being aware of any changes to regulatory compliance and requirements set forth by any governing body.

 
11. U.S. Government Rights.
 
11.A.

 

The Software and computer software documentation (“Documentation”) are “commercial items” as that term is defined in the Federal Acquisition Regulation (“FAR”) 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202.If acquired by or on behalf of a civilian agency, the U.S. Government acquires or will acquire the Software and/or Documentation and other technical data subject to the terms of this Agreement as required in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the FAR and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires or will acquire the Software and/or Documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or technical data.

 
12. Indemnification
 
12.A.

Licensee will indemnify, defend, and hold harmless BlueSkies, its licensors, and each of their respective employees, officers, directors, and affiliates ("Indemnified Parties"), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from Licensee's use of the Software or its breach of any term of this Agreement.

 
13. Warranties
 
13.A.

 

The Limited Warranty referenced below is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, BlueSkies and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied, or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.

 
13.B.

 

EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BLUESKIES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, 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 PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF BLUESKIES OR ANY SUPPLIER, AND EVEN IF BLUESKIES OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 
13.C. LIMITATION OF LIABILITY AND REMEDIES.

 

Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of BlueSkies and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by BlueSkies with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you (prorated based on renewal date) for the Products data service for the current year of service or U.S.$5.00. The foregoing limitations, exclusions, and disclaimers (as stated in the Limited Warranty) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. Should a legal situation arise that requires adjudication BlueSkies has the express right to choose the venue and whether the matter will be brought to binding arbitration or to a civil hearing. Should the verdict be found in favor of BlueSkies the User/Plaintiff will be responsible for any and all legal fees assessed upon BlueSkies included, but not limited to court cost, attorney’s fees and travel expenses.

 
13.D. ENTIRE AGREEMENT.

 

This EULA (including any addendum or amendment to this EULA which is included with the Product) are the entire agreement between you and BlueSkies relating to the Product and the Support Services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Product or any other subject matter covered by this EULA. To the extent the terms of any BlueSkies (AgileSRC LLC) policies or programs for Support Services conflict with the terms of this EULA, the terms of this EULA shall control.

 
13.E.

 

The EULA does not grant end-user any rights in connection with any trademarks or service marks of the licensor, provider or licensor’s other suppliers.

 
13.F.

 

The Product is protected by copyright and other intellectual property laws and treaties. BlueSkies or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold.