Last revised March 3rd, 2017.
PLEASE READ CAREFULLY BEFORE USING THIS SOFTWARE:
By clicking on the appropriate button, You are indicating that You agree to be bound by the provisions of these “Terms”. By downloading, installing, copying or using any Software, You agree to be bound by these Terms.
If You do not wish to be bound by these Terms, please do not download, install, copy or use the Software.
You represent and warrant that you have validly entered into these Terms and that you have the power and authority to do so. If you have no such power or authority you may not download, install, copy or use any Software.
You agree that your consent to these Terms is not contingent on the delivery of any future software, maintenance, functionality or feature or dependent on any oral or written public comments made by TechMill or any of its affiliates regarding future software, maintenance functionality or features.
“Documentation” means the user information located at visualcomposer.io/help.
“IP Rights” means (i) patents, pending patent applications, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights. “Maintenance” shall have the meaning ascribed in clause 2.2.
“Software” means the whole or part of any element, referred to from time to time as Visual Composer Hub Assets, downloadable by You only pursuant to Your active subscription to the Visual Composer Cloud, such subscription being only valid under the terms of the Visual Composer Cloud Access Terms, which You have already agreed and which can be found at visualcomposer.io/cloud-access-terms (“Visual Composer Cloud Access Terms”). Software may be under TechMill’s copyright or under third-party’s copyright. In the latter case, third-party Software shall be subject to such terms as accompany that Software, but in the absence of such terms the present Terms shall apply as if you had independently agreed them with the third-party holding a copyright on the Software.
“WordPress” means that well-known third-party owned website and service found at https://wordpress.org/, with which you independently opened an account and for which you have independently agreed separate terms. TechMill is not an agent of WordPress and is not a party to your separate agreement with WordPress. All questions or claims pertaining to your WordPress account may be directed to WordPress.
2.1 Subject to these Terms and for so long as (i) you are under a trial period under Your Visual Composer Cloud Access Terms or (ii) all payable Fees are paid under Your Visual Composer Cloud Access Terms, whichever is longer, TechMill hereby grants You a paid-up, limited, personal, revocable, non-exclusive, non-sublicensable, non-transferable, license to download, install and use the Software in conjunction with WordPress for Your single website identified in connection with your Visual Composer Cloud subscription. TechMill reserves the right, at any time, to change or impose fees for access to and use of the Software and/or the Maintenance (if any). All other rights are reserved.
2.2 This license does not imply any rights to future upgrades or updates of the Software (“Maintenance”). However, if TechMill does provide You with any Maintenance, you must download and install the related upgrades or updates, which shall be subject to these Terms or to such agreement, if any, which accompanies such upgrades or updates, and may be subject to additional payments.
2.3 Your license to use the Software is conditional upon your acceptance of these Terms. This is a license agreement and not an agreement for sale of the Software.
2.4 Except as TechMill specifically agrees in writing, You shall be solely responsible for the selection, implementation, conformity or performance of any and all third party equipment, software (including Software under third-party copyright) and telecommunication equipment and services, handheld device and computer, with which you choose to operate the Software.
2.5 You understand and acknowledge that to use the Software in conjunction with WordPress ™, you must maintain valid licenses and permissions applicable to Your WordPress subscription and to any applicable internet or wireless data service.
2.6 You understand and acknowledge that to download and install the Software or benefit from Maintenance (if any), you must have an internet connection or a data plan with your cellular services provider or a data connection (e.g., Wi-Fi connection).
2.7 The use of the Software requires You to be a registered user of the Visual Composer Cloud and to maintain up to date TechMill Credentials as that term is defined in Your Visual Composer Cloud Access Terms.
3. Your use of the Software and Maintenance:
You agree that:
3.1 You will use the Software and Maintenance only in accordance with these Terms and the Documentation. You will not permit any other person to use the Software or Maintenance, and You will not use the Software or Maintenance for any other website than the one for which you registered your use of the Visual Composer Cloud under Your Visual Composer Cloud Access Terms.
3.2 You will ensure that any information you provide to TechMill is true, accurate, current and complete.
3.3 You will not use or permit any other person to use the Software or Maintenance to transmit harassing, inciting, abusive, libelous, illegal, deceptive, messages or information, or unsolicited email, junk mail, “spam”, or chain letters, or promotions or advertisements for products or services, or messages or information that constitute intellectual property infringement or breach of privacy or publicity rights or moral or attribution rights, or messages or information that knowingly include software viruses, Trojan horses, worms, vandals, spyware and any other malicious applications.
3.4 You will not use or permit any other person to use the Software or Maintenance to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts.
3.5 Unless with the prior written agreement of an authorized officer of TechMill, You will not sell, assign, rent, lease, distribute, export, import, operate as a service bureau, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Software, Maintenance or any entitlement to receive Maintenance.
3.6 Unless with the prior written agreement of an authorized officer of TechMill, You will not undertake, cause, permit or authorize the modification, translation or creation of any other derivative work, reverse engineering, decompiling, disassembling or hacking of the Software or Maintenance or any part thereof except to the extent permitted by law (notably under European Directives).
3.7 You will not remove or attempt to remove or circumvent any security measures installed in the Software and Maintenance.
3.8 You will cooperate with TechMill and provide information requested by TechMill to assist TechMill in investigating or determining whether there has been a breach of these Terms or a breach of the laws and industry standards in the United States of America, including but not limited to DMCA (https://www.copyright.gov/legislation/dmca.pdf) and provide TechMill with access to the premises and device where Software or Maintenance have been used. TechMill will have the right to investigate and prosecute violations of these Terms, including intellectual property rights infringement, to the fullest extent of the law. TechMill may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that TechMill has no obligation to monitor Your access or any user’s access to or use of the Software or Maintenance, but has the right to do so for the purpose of licensing the Software and Maintenance, to ensure users’ compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
4. IP Rights
4.1 Exclusive Ownership: Any and all IP Rights, including patents, copyright, trademark, trade secrets, and other IP rights, in the Software, Maintenance and the Documentation are and shall remain the exclusive property of TechMill and/ or its licensors. Except for the limited rights explicitly granted to you in this license agreement, You do not acquire hereby any IP Rights in the Software, the Maintenance and the documentation, including in any confidential information or trade secrets, in or relating to the Software or Maintenance, or any part thereof. You will not take any action to jeopardize, limit or interfere with TechMill’s IP Rights. Any unauthorized use of TechMill’s IP Rights is a violation of these Terms as well as a violation of intellectual property laws, regulations and treaties.
4.2 No Removal of Notices: You shall not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/ or TechMill’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
4.3 DMCA notices: TechMill respects the intellectual property rights of others. Any requests to remove copyright infringing content from the Software, Maintenance, or Documentation or counter requests to re-post content, on grounds of mistake or misidentification of the content, should be directed to firstname.lastname@example.org.
You acknowledge and agree that TechMill developed the Software or Maintenance at considerable time and expense. The Software or Maintenance is confidential to and contains trade secrets of TechMill. You agree to maintain the Software and Maintenance in strict confidence and not to disclose or provide access thereto to any person except to those persons with a need for access to exercise the license rights conferred to You under these Terms.
6. Term and Termination.
6.1 Effective Date. These Terms shall be effective at the earliest of (i) when You agree to be bound by these Terms, as manifested by Your clicking on the appropriate button, or (ii) Your downloading, installing, copying or using the Software or Maintenance.
6.2 Termination for Breach. If You breach any provision of these Terms, TechMill may, in addition to all other rights and remedies provided by these Terms or by law, terminate your permission to use the Software and/or Maintenance. TechMill will have the right to terminate Your right to use the Software and/or Maintenance if:
(a) You fail to comply with or perform a term or condition herein, including the failure to pay any Maintenance or license fees when due;
(b) You interfere with TechMill’s customer service or business operations, or
(c) You materially contravene any agreement that You may have with TechMill, including without limitation, these Terms, any other policy of TechMill applicable to Your use of the Software and/or Maintenance, or otherwise.
6.3 Termination without breach. In addition, TechMill may terminate Your right to use the Software and/or Maintenance without any liability whatsoever to You if:
(a) TechMill is prevented from providing any portion or all of the Maintenance by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body, or
(b) Push technology available to users of WordPress™ is no longer available for any reason.
6.4 Termination of Operation. TechMill may at all times, and in its sole discretion, terminate the operation of the Maintenance, or any part thereof, temporarily or permanently. TechMill will provide You a prior notice using the e-mail address that You provided upon registration, within 30 days prior to the termination of the Maintenance.
6.5 Upon expiry of Your license pursuant to clause 2.1 above or termination of Your rights as provided in this Section, You will cease all use of the Software and Maintenance, and TechMill shall cease to provide the Maintenance. However, only in cases of expiry pursuant to clause 2.1 or termination without breach, You may continue to display on your website, at your own risks and costs, any graphic results produced by the Software prior to such expiry or termination.
6.6 TechMill shall not have any liability to You arising from or related to the termination of the license contained herein and the Maintenance in accordance with this Section, including for any loss of data.
7. Indemnification. You shall defend, indemnify, and hold harmless TechMill, TechMill’s licensor, successors, affiliates agents and assigns (each a “TechMill Indemnified Party”) from any claims, damages, losses, or expenses (including attorneys’ fees and costs) incurred by any TechMill Indemnified Party in connection with all claims, suits, judgments and causes of action (i) for infringement of patents or other intellectual property or proprietary rights arising from combining with or using any device, system or service in connection with the Software or Maintenance, or any portion thereof, (ii) for damages arising from Your breach of these Terms including but not limited to failure to comply with data breach laws and industry standards in the United States of America, including but not limited to DMCA, (iii) for libel, slander, defamation or infringement of any third party IP Right with respect to material transmitted by You using the Software or Maintenance. No remedy herein conferred upon TechMill is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative.
8. DISCLAIMER OF WARRANTIES.
8.1 THE SOFTWARE AND MAINTENANCE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY OR COMPLETENESS, SATISFACTORY QUALITY, AND QUIET ENJOYMENT, OR OTHER WARRANTIES OR CONDITIONS ARISING BY STATUTE, OPERATION OR LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE ARE HEREBY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO ALL USERS. TECHMILL DOES NOT WARRANT THAT THE USE OF THE SOFTWARE OR MAINTENANCE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WILL BE TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. TECHMILL DOES NOT WARRANT THAT THE USE OF THE SOFTWARE OR MAINTENANCE WILL BE COMPATIBLE WITH USE OF ANY ANOTHER SOFTWARE, INCLUDING WORDPRESS™ AND THIRD-PARTY SOFTWARE NOT UNDER TECHMILL COPYRIGHT (EVEN IF DOWNLOADED FROM THE VISUAL COMPOSER CLOUD). THIS WARRANTY DISCLAIMER IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND TECHMILL. TECHMILL WOULD NOT PROVIDE THE SOFTWARE OR MAINTENANCE ABSENT SUCH DISCLAIMER. NO REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY OF TECHMILL’S LICENSORS UNDER OR BY VIRTUE OF THESE TERMS.
8.2 YOU ACKNOWLEDGE AND AGREE THAT TECHMILL AND ITS LICENSORS CANNOT TRANSMIT DATA VIA THE SOFTWARE IF YOUR INTERNET CONNECTION IS DOWN OR YOUR HANDHELD DEVICE IS UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.).
8.3 YOU ACKNOWLEDGE AND AGREE THAT INTERNET AND WIRELESS COMMUNICATIONS ARE, BY THEIR NATURE, NOT FAIL PROOF. TECHMILL DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SOFTWARE AND MAINTENANCE IN MISSIONCRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS, COMPLIES WITH LAWS, RULES, REGULATIONS AND PROCEDURES APPLICABLE TO THE USE OF CELLULAR SERVICES IN SUCH ENVIRONMENTS.
8.4 TECHMILL AND ITS LICENSORS DO NOT WARRANT THAT THE END RESULT OF RUNNING THE SOFTWARE, OR YOUR EXPERIENCE OF IT, ON YOUR DEVICE, UNDER YOUR CONFIGURATION AND IN YOUR ENVIRONMENT, WILL NECESSARILY MATCH THAT PRODUCED ON ANOTHER DEVICE, CONFIGURATION OR ENVIRONMENT, NOTABLY AS TO DISPLAY CHARACTERISTICS (SUCH AS COLOR FOR EXAMPLE). DISPLAYED RESULTS FROM RUNNING THE SOFTWARE MAY VARY FROM USER TO USER.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL TECHMILL BE LIABLE FOR ANY PERSONAL INJURY, AND FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF TECHMILL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF TECHMILL ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNT PAID TO TECHMILL IN RESPECT OF THE SOFTWARE OR MAINTENANCE GIVING RISE TO THE CLAIM. TECHMILL SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, RESULTS OR CONTINUED AVAILABILITY OF THE SOFTWARE OR MAINTENANCE.
EXCEPT FOR ACTIONS FOR BREACH OF TECHMILL’S PROPRIETARY RIGHTS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THESE TERMS MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION.
10. Not Free of Errors. TechMill does not warrant or guarantee that the Software and Maintenance will be error free or that errors will be or can be corrected.
11. Assignment. TechMill may assign its rights and obligations under these Terms without notice to You. You shall not assign your rights or obligations under these Terms without the prior written consent of TechMill (such consent may be withheld or conditioned at TechMill ‘s discretion) and any assignment without TechMill ‘s prior written consent shall be null and void and of no effect.
12. Notices. All notices required under these Terms will be given as follows: (a) in the case of notices to TechMill, by certified mail, return receipt requested, to the address first above stated. Such notice will be deemed effective upon receipt by TechMill; and (b) in the case of notices to You, by e-mail to the e-mail address that You provided to TechMill upon any registration, such notice to be deemed effective upon the earlier of (i) twenty four (24) hours after transmission, or (ii) Your actual receipt of any such e-mail.
13. Force Majeure. Notwithstanding any other provision of these Terms, neither party shall be deemed in default of these Terms for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing nonperformance of any obligation by either party to make payment to the other party under these Terms.
14. Export Restrictions. The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by national governments. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
15. General Provisions
15.1 No Third Party Beneficiaries. Except as otherwise specifically stated in these Terms, the provisions herein are for the benefit of You and TechMill and not for any other person or entity.
15.2 No Waiver. Waiver by You or TechMill of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default.
15.3 Survival. The terms, conditions and warranties contained in these Terms that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of these Terms.
15.4 Governing Law and Dispute Resolution. These Terms will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. These Terms will be governed by and construed in accordance with the substantive laws in force in the Commonwealth of Massachusetts and the competent federal and state courts in Boston, Massachusetts, USA shall each have non-exclusive jurisdiction over all disputes relating to these Terms.
15.5 Severability. If a provision of these Terms is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Terms, but rather (unless a failure of consideration would result therefrom) the entire Terms shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of each party shall be construed and enforced accordingly.
15.6 Entire Agreement. These Terms constitute the entire agreement between You and TechMill with respect to the subject matter hereof. You acknowledge that You have not relied on any statements or representations made by or on behalf of TechMill in agreeing to enter into these Terms. TechMill reserves the right to make changes to these Terms by providing You with reasonable notice of the change by either e-mail (as contemplated by the Notice provision above).