End User License Agreement
THIS END USER LICENSE AGREEMENT ("License Agreement") IS A LEGAL AGREEMENT between you (either an individual or an entity) and Kubely, LLC. ("Kubely"). By clicking on the "Agree"/"Download"/"Buy" buttons or installing, using or benefiting from Kubely software (the "Software"), you are agreeing to be bound by the terms and conditions of this License Agreement. If you do not agree to the terms and conditions of this License Agreement, do not click on the "Agree"/"Download"/"Buy" buttons and you may not access or otherwise use or benefit from the Software in any manner. The terms and conditions of this License Agreement also apply to any updates, supplements, Internet-based services, and support services for this Software, unless other terms accompany those items. If so, those terms apply.
1. Grant of Limited License; Conditions.
Any license granted to you herein is conditioned on your compliance with the terms and conditions contained in this License Agreement.
(a) Downloaded and Software on Media. Kubely grants to you a non-exclusive, personal, limited right to install and use the Kubely software program downloaded or contained on the CD-ROM, disk or other media (the "Software"). The license permits either (a) multiple users to install and use the Software on a single machine; or (b) a single user to install and use the Software on multiple machines. However, a single license does not allow multiple users to ever use Software on multiple machines, regardless of whether such use is concurrent.
(b) Online Subscription Software. If available and you licensed the Software on an online subscription basis, Kubely grants to you a non-exclusive, personal, limited right to use and access the Software for the subscription period for which you have paid the applicable subscription fees, solely for your own internal business purposes, subject to the terms of this License Agreement and any other terms and conditions accompanying such Software. If any subscription based Software is licensed on a "named user" basis, rights of any user licensed to utilize the Software service cannot be shared or used by more than one individual. In addition, a user may not be transferred from one individual to another unless the original user no longer requires, and is no longer permitted, access to the Software service. You may have the option to extend your subscription. If you extend your subscription, you may continue using the Software until the end of your extended subscription period. See the Software activation screens or other accompanying materials for subscription details. After the expiration of your subscription, features of the Software will stop running.
2. Reservation of Rights and Ownership.
Kubely reserves all rights not expressly granted to you in this License Agreement. The Software is licensed, not sold. Kubely, its affiliates, and their suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein, and the Software is protected by United States copyright laws and other intellectual property laws and international treaty provisions. Among other things, copyright laws prohibit you from making derivative works of the Software. You may, however, make copies of the Software solely for your individual and personal use on multiple computers, provided that you include all copyright and proprietary rights notices on any copies. Notwithstanding the foregoing, you may not make copies for use on multiple machines if multiple users (including employees, agents, or contractors) will use those machines unless you purchase a corresponding number of seat licenses. Your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this License Agreement. To the extent you provide any comments or suggestions to Kubely, Kubely shall have the right to retain and use any such comments or suggestions regarding the Software in current or future software, products or services, without further compensation to you or without your approval.
3. Other License Restrictions.
(a) You may not modify, reverse-engineer, decompile, or disassemble the Software.
(b) You may not claim that the Software, in whole or in part, is yours, and you may not use the name Kubely (or any of their suppliers’) or any of their respective logos or trademarks in any manner without first obtaining the prior written permission from an authorized representative of Kubely.
(c) You must use the Software at all times in a manner that is consistent with any other software licenses granted to you by other companies that have provided software for your computer. For example, if the Software is designed to be used with the Mac OS operating system, you may not use the Software in a manner inconsistent with the Mac OS license agreement between you and Apple, Inc.
(d) You may not distribute copies of the Software, in whole or in part, to any third party, nor may you use, rent, make available, loan, sublicense, or lease, with or without consideration, the Software to third parties. You further may not use the Software to act as a service bureau or application service provider or use the Software for commercial software hosting services. In addition, you may not publish the Software for others to copy or use the Software in any way that is against the law.
4. Limited Refund and Warranty; Disclaimers and Limitation of Liability.
(a) Kubely provides a thirty (30) day money-back guarantee on the Software. If you are dissatisfied with the Software for any reason, Kubely will refund your purchase price paid if you uninstall the Software and return the Software and all copies to the place of purchase within thirty (30) days of the date of the original purchase by the original user. THESE ARE YOUR ONLY REMEDIES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND/OR SERVICES. EXCEPT FOR THE FOREGOING THE SOFTWARE, ANY DOCUMENTATION, AND ANY SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, Kubely, ITS AFFILIATES AND THEIR SUPPLIERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, GUARANTEE, OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, SATISFACTORY QUALITY, WORKMANLIKE EFFORT, AVAILABILITY, SECURITY, INTEGRATION, CUSTOMER DATA, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THE ENTIRE RISK ARISING OUT OF THE USE OR RESULTS OBTAINED FROM THE SOFTWARE, DOCUMENTATION AND/OR SERVICES REMAINS ENTIRELY WITH YOU. WITHOUT LIMITING THE FOREGOING PROVISIONS, Kubely, ITS AFFILIATES AND THEIR SUPPLIERS MAKE NO WARRANTY, REPRESENTATION AND/OR GUARANTEE THAT THE SOFTWARE, DOCUMENTATION, AND/OR SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR WILL MEET YOUR REQUIREMENTS.YOU (AND NOT Kubely, ITS AFFILIATES OR THEIR SUPPLIERS) ASSUME THE ENTIRE RISK AND COST RELATED TO OR ARISING OUT OF THE SOFTWARE, DOCUMENTATION, AND/OR SERVICES.
(b) IN NO EVENT SHALL Kubely, ITS AFFILIATES OR THEIR SUPPLIERS OR ANYONE ELSE INVOLVED IN THE CREATION, PRODUCTION, MARKETING, DISTRIBUTION, OR DELIVERY OF ANY PART OF THE SOFTWARE, DOCUMENTATION AND/OR SERVICES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, FOR BUSINESS INTERRUPTION, FOR LOSS OF BUSINESS INFORMATION, OR FOR OTHER MONETARY LOSS, ARISING OUT OF THE USE OF OR THE PERFORMANCE OF THE SOFTWARE, DOCUMENTATION AND/OR SERVICES OR THE INABILITY TO USE THE SOFTWARE, DOCUMENTATION AND/OR SERVICES AND OTHER INFORMATION PROVIDED TO YOU BY Kubely, OR IN THE PROVISION OF, OR FAILURE TO PROVIDE, SERVICES OR INFORMATION. This exclusion and limitation shall apply even if any remedy fails of its essential purpose.
Because some states of the United States and some countries do not allow the exclusion or limitation of the liability for consequential or incidental damages, the above disclaimer may not apply to you. Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you downloaded or otherwise received the Software.
(c) 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 CUMULATIVE LIABILITY OF Kubely, ITS AFFILIATES AND ANY OF THEIR SUPPLIERS, WHETHER IN CONTRACT (INCLUDING ANY PROVISION OF THIS LICENSE AGREEMENT), TORT, OR OTHERWISE, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE LESSER OF DIRECT DAMAGES IN THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE AND/OR SERVICES OR U.S. $0.01. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF Kubely, ITS AFFILIATES AND ANY OF THEIR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
By clicking the "Agree"/"Download"/"Buy" buttons or using or accessing the Software, you also represent that you are responsible for and have paid Kubely any and all applicable license fees for the Software unless Kubely has made available a version of the Software on a trial or evaluation basis for no fees, in which case, no fees are required for such trial or evaluation Software. If available and you licensed the Software on a subscription basis, you agree to pay timely such fees throughout the subscription period. You must keep all information in your billing account accurate and current, including your billing address and any expiration date for your payment method. Accounts that have an invalid payment method at the time of renewal will be suspended.
6. Your Warranty to Kubely.
You warrant that all individuals having access to and/or using the Software will observe and perform all the terms and conditions of this License Agreement. You shall use all reasonable efforts to see that employees, agents, or other persons under your direction or control who have access to and/or use the Software, Documentation, and Services abide by the terms and conditions of this License Agreement. You shall, at your own expense, promptly enforce the restrictions in this License Agreement against any person who gains access to your copy of the Software (i.e. the copy you obtain upon agreeing to this License Agreement or any other lawful copy you have made from such copy) with your permission or while your employee or agent and who violates such restrictions, by instituting and diligently pursuing all legal and equitable remedies against him or her. You agree to immediately notify Kubely in writing of any misuse, misappropriation or unauthorized use, disclosure, display or copying of the Software Documentation, and/or Services that may come to your attention. If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this License Agreement, you shall be deemed to have taken the action yourself. You agree to defend, indemnify and hold harmless Kubely, its affiliates and their suppliers from any and all claims resulting from or arising out of any your, including any employee’s or agent’s (a) use or misuse of the Software, Documentation, and/or Services, including without limitation, data you enter into, store, or access through the Software ("Customer Data"). (b) violation of any law or the rights of any third party, including but not limited to infringement or misappropriation of any intellectual or proprietary rights of any third party, or (c) breach of this License Agreement, including any breach of any warranty or representation you make to Kubely.
7. Terms of Service; Security; Availability.
(a) If you downloaded the Software or access any Software services, Kubely servers will automatically log certain non-personal information from your computer, information such as your IP address. If you decide you wish to use certain Software services, we require that you provide us with certain billing information that is personal to you ("Personal Information"). That Personal information includes your name, address and credit card number and may also include other information such as your email address. After we have received payment from your credit card company, we save only the last five digits of your credit card for identification purposes.
(b) Kubely may, on occasion, use your IP address and review other information, including Customer Data, to help diagnose problems with our server and to administer its website. Kubely may provide aggregate statistics about our customers, traffic patterns, and related site information to reputable third-party vendors. In this process, the information that Kubely collects remains anonymous to third parties. Kubely may derive general information from your Personal Information and web usage. Kubely may also collect and use Customer Data and other information to operate and improve our Software, sites and services. These uses may include providing you with more effective customer service; making the Software, sites and services easier to use; reviewing and performing research and analysis aimed at improving our Software, products, services and technologies; and providing technical support, including as you expressly authorize us to do in connection with your use of the Software services; and as necessary to provide the Software services to you,
While we may track information regarding your use of the Software, we will not sell or license Personal Information, and will not disclose your Personal Information except as we may determine to be necessary or desirable to comply with the License Agreement, the request of a governmental or regulatory body, subpoenas or court orders, or for other legal purposes. We may also disclose Personal Information as part of a corporate transaction such as a merger or sale of assets.
(c) Kubely strives to ensure the reliability and security of our Software services but cannot guarantee that we will be successful at doing so, given the nature of the Internet. We will use commercially reasonable efforts and industry accepted methods to help ensure the reliability and security of our Software services, but Kubely, its affiliates, and their suppliers are not responsible to you or any third party for unauthorized access or use, corruption, deletion, destruction or loss of your data or the unauthorized use of the Software services. You are responsible for the use of the Software services by any employee of yours, any person to whom you have given access to the Software services, and any person who gains access to your data or the Software services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
(d) You acknowledge and agree that: (i) your access to and use of the Software services may be suspended for the period of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Software services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) Kubely shall also be entitled, without any liability to you, to suspend access to any portion or all of the Software services at any time: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Software services; (b) in the event of a denial of service attack or other attack on the Software service or other event that we determine, in our sole discretion, may create a risk to the applicable Software service, to you or to any of our other customers if the Software service were not suspended; or (c) in the event that we determine that any Software service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Kubely, its affiliates, and their suppliers shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide notice of any Service Suspension by posting updates on our website regarding resumption of Software services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so. The foregoing is in addition to Kubely’s rights to terminate or suspend this License Agreement as set forth in Section 10 below.
(e) In no event shall Kubely, its affiliates or their suppliers or anyone else involved in the creation, production, marketing, distribution, or delivery of any part of the Software, Documentation and/or services be responsible or liable for or deemed in breach hereof because of any delay in the performance of its respective obligations hereunder due to circumstances beyond its reasonable control, including but not limited to acts of God; weather conditions; war; terrorism in any form; riots; acts of the public enemy; requirements, actions or failures to act on the part of governmental authorities preventing performance; accidents; fire; and transportation delays or accidents. The provisions of this section are in addition to the other limitations and conditions of this License Agreement, including Section 4.
8. Export Control Laws.
You agree to comply with all laws, rules and regulations applicable to the export of the Software. In that regard, you agree not to export or transmit or download, directly or indirectly, the Software or any technical data or products received from Kubely except in full compliance with all U.S. Export Administration Regulations and the import/export rules of any other country. Diversion contrary to U.S. or other law is expressly prohibited. You agree to comply with all applicable export laws and regulations and the laws, regulations, and rules of any country or region which apply to any of your use of the Software, Documentation and Services. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you shall comply with the foregoing.
9. Injunctive Relief.
Because of the unique nature of the Software, you understand and agree that Kubely will suffer irreparable injury in the event you fail to comply with any of the terms and conditions this License Agreement and that monetary damages may be inadequate to compensate Kubely for such breach. Accordingly, you agree that Kubely will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms and conditions of this License Agreement.
You may terminate this Agreement at any time. If available and you licensed the Software on an online subscription basis, the Software services will be automatically renewed upon the expiration of the then current term, unless you log into your account and cancel your service prior to the expiration date. Fees at the time of automatic renewals will be at the then-current rates for such Software services. Kubely may immediately terminate this License Agreement if you breach any representation, warranty, agreement or obligation contained or referred to in this License Agreement. Upon termination, you must dispose of the Software and all copies or versions of the Software by destroying the Software. Upon termination or expiration of any Software services, Kubely will endeavor to keep your existing data and data files of yours available for you to retrieve for a period not to exceed sixty (60) days from such termination or expiration. Following such period, you agree that Kubely may permanently dispose of or delete such data and data files without notice or any obligation or liability to you. The provisions of Sections 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this License Agreement shall survive termination or expiration of this Agreement for any reason.
11. Venue; Miscellaneous.
In any suit or other action to enforce any right or remedy under or arising out of this License Agreement, the prevailing party shall be entitled reasonable attorneys’ fees together with expenses and costs that such prevailing party incurs. This License Agreement shall be governed by the laws of the State of Texas, but not including the 1980 United Nations Convention on Contracts for International Sale of Goods or conflicts of law principles that would require the application of law of a different jurisdiction. Venue for any action under this Agreement shall be limited to the federal and state courts located in Round Rock, Texas, provided that Kubely may pursue injunctive relief in any forum in order to protect intellectual property rights. You consent to the personal jurisdiction of the courts of such venue. This License Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns. The failure by Kubely to enforce any provision of this License Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective. This License Agreement, together with any addendum or amendment included with the Software, is the complete agreement between Kubely and you and supersedes all prior agreements, oral or written, with respect to the subject matter hereof. All communications and notices to be made or given pursuant to this Agreement shall be in the English language. This License Agreement is prepared in the English language. In the event of a conflict between the English language version and any translated version, the English language version shall govern the parties’ relationship. Any translation of this License Agreement into any other languages shall be for convenience of reference only.
12. U.S. Government Restricted Rights.
The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at 48 CFR § 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights 48 CFR § 52.227-19, as applicable. Manufacturer is Kubely, LLC.
If the Commercial Computer Software Restricted Rights clause at 48 CFR § 52.227-19 or its successors apply, the Software constitutes restricted computer software as defined in that clause and the Government shall not have the license for published software set forth in subparagraph (c)(3) of that clause.
The Software (i) was developed at private expense, and no part of it was developed with governmental funds; (ii) is a trade secret of Kubely for all purposes of the Freedom of Information Act; (iii) is "restricted computer software" subject to limited utilization as provided in the contract between the vendor and the governmental entity; and (iv) in all respects is proprietary data belonging solely to Kubely.
COPYRIGHT NOTICE. Copyright © 2015-2022 Kubely, LLC. All rights reserved. Any rights not expressly granted in this License Agreement are reserved.
TRADEMARKS. "Kubely", "Wirecog", "Wireframe Cognition", "Isomorphic Go", "UX Toolkit", "GolangAce", "xkick" are either trademarks or registered trademarks of Kubely, LLC. "Kubely" is a registered trademark and is used under license.
PATENTS. This section, is intended to serve as notice under 35 U.S.C. § 287(a). Wirecog (Wireframe Cognition) is based on the Wireframe Recognition and Analysis Engine - U.S. Patent No. 8,943,468.
CONSENT TO AGREEMENT TERMS IMPORTANT NOTICE: Clicking or authorizing the clicking of the "Agree"/"Download"/"Buy" buttons is a symbol of your electronic signature that you are authorized, and in so doing, accept and agree to be bound by all provisions of the License Agreement. Do not proceed and click "Disagree" if you are not authorized and/or you do not agree to all of the provisions of the License Agreement.