1. Trillian™ Services
The capitalized term "Trillian™ Services" means the Trillian™ instant messaging software, services, and websites made available to you in connection with this Agreement and all related documentation, enhancements, and updates that may be provided to you in the future by Cerulean.
The Trillian™ Services are licensed, not sold, to you by Cerulean for use strictly in accordance with the terms and conditions of this Agreement. Ownership of the Trillian™ Services shall at all times remain with Cerulean. Copies of the Trillian™ Services are provided to you only to allow you to exercise your rights under this Agreement. You must provide and are responsible for all equipment and Internet connectivity necessary to access the Trillian™ Services.
3. Registration Obligations
In consideration of your access to and use of the Trillian™ Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Trillian™ Services under the laws of the United States or other applicable jurisdiction. In order to access the Trillian™ Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process (the "Registration") for a specific Trillian™ Service or as part of your continued access to and use of a Trillian™ Service. In connection with the Registration, you will select (or Cerulean will assign to you) a user name that will be identified with your account (your "Trillian™ Username"). You will also be able to select a password to access your Trillian™ Username (together with your Trillian™ Username, a "Trillian™ Account") and the Trillian™ Services. Cerulean may reject any Trillian™ Username that Cerulean determines in its discretion is unacceptable for use in connection with the Trillian™ Services. You agree to use the Trillian™ Services only for the purposes that are permitted by (a) this Agreement, and (b) by applicable law, regulation, and generally accepted practices in the relevant jurisdictions. You also agree to: (i) provide true, accurate, current, and complete information about yourself as prompted by the Trillian™ Services registration form (the "Registration Data") and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, non-current, or incomplete, or Cerulean has reasonable grounds to suspect that such information is untrue, inaccurate, non-current, or incomplete, Cerulean has the right to suspend or terminate your account and refuse any and all current or future use of the Trillian™ Services (or any portion thereof). You also understand and agree that the Trillian™ Services may include certain communications from Cerulean (e.g., service announcements, administrative messages, and other information and alerts), and that these communications are considered part of the Trillian™ Services and you will not be able to opt out of receiving them.
4. Provision of the Trillian™ Services
You acknowledge and agree that Cerulean may provide the Trillian™ Services through one or more subsidiaries, affiliates, or third parties.
5. Grant of License
Subject to the terms and conditions set out in this Agreement and solely with respect to the Trillian™ Services, Cerulean grants you a personal, limited, nonexclusive, nontransferable, non-sublicensable, and revocable right to use the Trillian™ Services described in the Trillian™ documentation on as many supported computers and devices owned, leased, or rented by you as you require.
6. Inactive Status
In addition to the termination rights of Cerulean under this Agreement, with respect to the Trillian™ Services, Cerulean also reserves the right to deactivate your Trillian™ Username if your Trillian™ Username has been inactive (including, without limitation, not signing into the Trillian™ Services) for more than 90 days.
7. Prohibited Conduct
You represent and warrant that you will not violate any of the terms and conditions set forth in this Agreement and that:
- You agree to use the Trillian™ Services strictly in accordance with this Agreement and not to, and not to permit others to: (i) reverse engineer, decompile, disassemble, derive the source code of the Software; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Trillian™ Services; (iii) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Cerulean or its affiliates, partners, suppliers or the licensors of the Trillian™ Services; (iv) use, copy, modify, alter, or transfer, electronically or otherwise, the Trillian™ Services, or any of the accompanying documentation except as expressly permitted in this Agreement; (v) make the Trillian™ Services available over a network or other environment permitting access or use by multiple users at the same time; (vi) use the Trillian™ Services for any revenue generating endeavor or commercial enterprise, or for any other purpose for which it is not designed or intended; or (vii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Trillian™ Services, in whole or in part, whether in a stand-alone configuration or as incorporated with other software code written by any party, except as expressly permitted in this Agreement.
- You will not submit or transmit through the Trillian™ Services any material, or otherwise engage in any conduct that (i) violates or infringes the rights of others including, without limitation, patent, trademark, trade secret, copyright, publicity, or other proprietary rights; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortuous, or contains explicit or graphic descriptions, or accounts of, sexual acts; (iii) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (iv) impersonates any person, business, or entity, including Cerulean and its employees and agents; (v) contains viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or otherwise permit the unauthorized use of a computer or computer network; (vi) encourages conduct that would constitute a criminal offense, or that gives rise to civil liability; (vii) violates this Agreement, guidelines, or any policy posted on the Cerulean website; or (viii) interferes with the use of the Trillian™ Services by others. You may not use the Trillian™ Services in any manner that could damage, disable, overburden, or impair Cerulean's servers or networks or those of any network provider to which the Trillian™ Services may connect. You may not attempt to gain unauthorized access to any services, Trillian™ Accounts, computer systems, or networks through hacking, password mining, or any other means. Cerulean may take legal and technical remedies to prevent violation of this provision and to enforce this Agreement.
- You will not transfer the Trillian™ Services or utilize the Trillian™ Services in combination with third party software authored by you or others to create an integrated software program that you transfer to unrelated third parties.
- You may only use the proprietary information or interfaces of Cerulean or other intellectual property of Cerulean in the design, development, manufacture, licensing or distribution of permitted developer applications described in Cerulean's developer documentation located at http://developer.ceruleanstudios.com, including, without limitation, plugins, extensions, and application skins, for use with the Trillian™ Services ("Permitted Developer Applications"). The permissible nature, functionality, and scope of Permitted Developer Applications may be extended, reduced, or otherwise revised in whole or in part by Cerulean in Cerulean's sole discretion without prior notice.
8. Intellectual Property Rights
8.1. Rights to the Trillian™ Services
You acknowledge and agree that the Trillian™ Services and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Cerulean. Furthermore, you acknowledge and agree that the source of the Trillian™ Services and the format, directories, queries, algorithms, structure and organization of the Trillian™ Services are the intellectual property and proprietary and confidential information of Cerulean and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Trillian™ Services by implication, estoppel or other legal theory, and all rights in and to the Trillian™ Services not expressly granted in this License are hereby reserved and retained by Cerulean.
8.2. Third Party Software
The Trillian™ Services may utilize or include third party software that is subject to open source and third party license terms ("Third Party Software"), including, without limitation, the license provisions provided at http://trillian.im/thirdparty/ (the "Third Party Software Licenses"). You acknowledge and agree that your right to use such Third Party Software as part of the Trillian™ Services is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to your use of the relevant Third Party Software. In no event, shall the Trillian™ Services or components thereof be deemed to be "open source" or "publicly available" software, except as expressly set forth in the Third Party Software Licenses.
8.3. Cerulean Marks
You acknowledge and agree that the following company names and logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from Cerulean: "Cerulean Studios" and "Trillian™" (the "Cerulean Marks"). You are not authorized to use the Cerulean Marks in any advertising, publicity or in any other commercial manner without the prior written consent of Cerulean, which may be withheld for any or no reason. Requests for authorization should be made to the designated advertising contact listed on the "Contact Us" page of the Cerulean website.
8.4. Infringement Acknowledgement
You and Cerulean acknowledge and agree that, in the event of a third party claim that your possession or use of the Trillian™ Services infringes any third party's intellectual property rights, you (and not Cerulean or its affiliates) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement.
9. Collection, Storage, and Use of Information
9.1. General Privacy Statement
9.2. Consent to Collect, Store, and Use Information
10. Third Party Content and Services
You acknowledge that the Trillian™ Services may permit access to products (including plugins), services, web-sites, advertisements, promotions, recommendations, advice, information, and materials created and provided by third parties (e.g., advertisers, publishers, content partners, marketing agents, vendors and other third parties) ("Third Party Content and Services").
You acknowledge that Cerulean does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites or communication services available through the Trillian™ Services). Furthermore, your access to and use of the Third Party Content and Services is at your sole discretion and risk, and Cerulean and its affiliates, partners, suppliers and licensors shall have no liability to you arising out of or in connection with your access to and use of the Third Party Content and Services. Cerulean hereby disclaims any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third Party Content and Services.
You acknowledge and agree that the provision of access to and the listing of any Third Party Content and Service (including any third party websites available through the Trillian™ Services) shall not constitute or imply any endorsement by Cerulean or its affiliates of such Third Party Content and Services. Cerulean reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Trillian™ Services, although Cerulean has no obligation to restrict or deny access even if requested by you.
10.4. Inappropriate Materials
You understand that by accessing and using the Third Party Content and Services, you may encounter information, materials and subject matter (i) that you or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language, and (iii) that automatically and unintentionally appears in information displayed by the Software (including, without limitation, Really Simple Syndication (RSS)), as a link or reference to objectionable material. Notwithstanding the foregoing, you agree to use the Third Party Content and Services at your sole risk and that Cerulean and its affiliates, partners, suppliers and licensors shall have no liability to you for information, material or subject matter that is found to be offensive, indecent, or objectionable.
11. Upgrades, Updates and Enhancements
All upgrades, updates or enhancements of the Trillian™ Services shall be deemed to be part of the Trillian™ Services and will be subject to this Agreement.
You may terminate this Agreement at any time by notifying Cerulean and immediately discontinuing all use of the Trillian™ Services. This Agreement will terminate automatically if you breach any of its terms or conditions or any of the terms or conditions of any other agreement between you and Cerulean. Without limiting other remedies, Cerulean may limit, suspend, or terminate this Agreement and your use of the Trillian™ Services, prohibit access to the Trillian™ Services and delete your Trillian™ Account, with immediate effect, automatically and without recourse to the courts, if Cerulean believes that you are in breach of this Agreement, creating problems, legal liabilities (actual or potential), infringing someone else's intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Cerulean shall effect such termination by providing notice to you to the email address you have provided, and/or by preventing your access to your Trillian™ Account. Upon termination, you shall immediately destroy the original and all copies of the Software and any accompanying documentation in your possession, custody or control, or return them to Cerulean and immediately discontinue all use of the Trillian™ Services.
13. Removal of Your Personal Information
Following termination of this Agreement, you may request that Cerulean remove your Information from Cerulean's network by submitting a written request referencing this Section 13 to Cerulean by email at email@example.com (Attention: Network Administrator) or by mail at 475 Federal Rd. Unit F, Brookfield, CT 06804 USA, Attention: Network Administrator. Any written request for removal of your Information pursuant to this Section 13 shall be effective when received by Cerulean. You acknowledge that certain Information may not be removed by Cerulean in connection with a request pursuant to this Section 13.
14. Disclaimer of Warranty
YOU ACKNOWLEDGE AND AGREE THAT THE TRILLIAN™ SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE TRILLIAN™ SERVICES AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. CERULEAN AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE TRILLIAN™ SERVICES AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, CERULEAN AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE TRILLIAN™ SERVICES OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE TRILLIAN™ SERVICES OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE TRILLIAN™ SERVICES WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE TRILLIAN™ SERVICES OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CERULEAN OR FROM THE TRILLIAN™ SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. EXCEPT FOR THE SUPPORT SERVICES, YOU ACKNOWLEDGE THAT CERULEAN HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE TRILLIAN™ SERVICES.
IN THE EVENT OF ANY FAILURE OF THE TRILLIAN™ SERVICES TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY CERULEAN, AND CERULEAN WILL, AS YOUR SOLE AND EXCLUSIVE REMEDY, REFUND TO YOU THE PURCHASE PRICE PAID, IF ANY, FOR THE TRILLIAN™ SERVICES. CERULEAN WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE TRILLIAN™ SERVICES, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE YOUR SOLE RESPONSIBILITY.
15. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CERULEAN OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE TRILLIAN™ SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, CERULEAN.S COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS LICENSE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES (IF ANY) YOU PAID FOR THIS LICENSE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You shall indemnify, defend and hold harmless Cerulean and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, reasonable fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your breach of this Agreement; (ii) your violation of law; (iii) your negligence or willful misconduct; or (iv) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the License.
Cerulean does not warrant that the Trillian™ Services will be compatible or interoperable with your computer, your mobile device, your computer or mobile device's operating system, your Internet browser software, or any other piece of hardware, software, equipment or device. Furthermore, you acknowledge that compatibility and interoperability problems can cause the performance of your computer and your computer operating system to diminish or fail completely, and may result in permanent damage to your computer and your computer operating system, loss of the data located on your computer, and corruption of the software and files located on your computer.
18. Product Claims
You acknowledge that you (not Cerulean) are responsible for addressing any third party claims relating to or resulting from your use or possession of the Trillian™ Services, and agree to notify Cerulean of any third party claims relating to the Trillian™ Services of which you become aware. Furthermore, you hereby release Cerulean from any liability related to or resulting from your use or possession of the Trillian™ Services.
19. Export Control
The Trillian™ Services may contain encryption and are subject to United States export control laws and regulations and may be subject to export or import regulations in other countries, including controls on encryption products. You agree that you will not export, re-export or transfer the Trillian™ Services in violation of any applicable laws or regulations of the United States or the country where you legally obtained it. You are responsible for obtaining any licenses to export, re-export, transfer or import the Trillian™ Services.
In addition to the above, the Trillian™ Services may not be used by, or exported or re-exported to: (i) any U.S. or EU sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) any person located in any 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; or (iii) any person listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List, as published and revised from time to time; or (iv) any party engaged in nuclear, chemical/biological weapons or missile proliferation activities, unless authorized by U.S. and local (as required) law or regulations. You hereby 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.
20. Safe and Lawful Use of the Trillian™ Services
When using the Trillian™ Services on a mobile device, you shall: (i) observe all traffic laws and otherwise drive safely; (ii) not use or otherwise interact with the Trillian™ Services, unless your vehicle is stationary and legally parked; (iii) not use the Trillian™ Services for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes, or in any manner inconsistent with this Agreement; (iv) arrange all wireless devices and cables necessary for use of the Trillian™ Services in a secure manner in your vehicle (whether you are operating the vehicle or a passenger) so that they will not interfere with the safe operation of the vehicle and will not prevent the operation of any safety device (such as an airbag); and (v) otherwise use the Trillian™ Services only in circumstances and in a manner that will not endanger you or others.
The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination: Sections 7, 8, 9, 12, 13, 14, 15, 17, 19, 21, 23, 24, and 25.
22. U.S. Government Legends
The Software is commercial in nature and developed solely at private expense. The Software is delivered as "Commercial Computer Software" as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided in this Agreement.
23. Legends and Notices
You agree that you will not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Trillian™ Services or any accompanying documentation.
24. Software Suggestions
Cerulean welcomes suggestions for enhancing the Trillian™ Services and any accompanying documentation that may result in computer programs, reports, presentations, documents, ideas or inventions relating or useful to Cerulean's business. You acknowledge that all title, ownership rights, and intellectual property rights concerning such suggestions shall become the exclusive property of Cerulean and may be used for its business purposes in its sole discretion without any payment or accounting to you.
You may not assign, sublicense or transfer the Trillian™ Services, this Agreement or any of the rights granted hereunder, except as expressly set forth in this Agreement. Any attempted assignment, sublicense, or transfer in contravention of this Section 24 shall be null and void and of no force or effect.
26.1. Entire Agreement
This Agreement constitutes the entire agreement between the parties concerning the Trillian™ Services, and may be amended only by a writing signed by both parties.
26.2. Governing Law
This Agreement shall be governed by the laws of the State of New York, excluding its conflict of law provisions. All disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of New York and you expressly consent to the exercise of personal jurisdiction in the courts of New York in connection with any such dispute. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
26.5. Third Party Beneficiaries
Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.