Theme Terms of Use

TERMS OF USE

Effective Date: As of August 14, 2020

 

IMPORTANT-READ CAREFULLY. THIS IS A LEGAL AGREEMENT BY AND BETWEEN (1) YOU THE LICENSEE, WHO IS THE PERSON, COMPANY, OR ENTITY UTILIZING "729 Solutions Zendesk Themes" – A WEB-BASED APPLICATION (THE “THEME”) – AND (2) MACDUFF ENTERPRISES, INC., A CALIFORNIA CORPORATION DBA 729 SOLUTIONS (“MACDUFF”). BY CLICKING THE "I ACCEPT" BUTTON, OR BY USING THEME, YOU ARE CONSENTING TO BE BOUND BY THESE TERMS OF USE (“AGREEMENT”). YOU FURTHER AGREE THAT YOUR EMPLOYEES OR ANY PERSON YOU AUTHORIZE TO USE THEME WILL ALSO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, THEN DO NOT USE THEME.

  1. OWNERSHIP. MACDUFF owns and shall retain all right, title, and interest in and to the Theme, any updates, changes, or maintenance releases – including any updates, changes, enhancements, or maintenance releases to Theme that are produced or generated as the result of any input, suggestions, submissions, recommendations, contributions, or feedback by Licensee, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto.  The Theme is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws, and all rights are reserved.  In no event shall the provision of any input, suggestions, submissions, recommendations, contributions, or feedback by Licensee, whether or not utilized by MacDuff for the Theme, confer upon Licensee any right, title, and interest in and to any part or all of the Theme and Licensee specifically waives and disclaims any and all such claims of ownership.
  2. LICENSE.
    1. Grant. MACDUFF hereby grants Licensee, and Licensee hereby accepts, a non-exclusive, non-sublicensable, non-transferable, perpetual, fully revocable license to use the Theme solely for internal use and operation upon the terms and conditions contained in this Agreement ("License"). You may use the Theme on any number of virtual machines or physical computing devices owned, leased, or otherwise controlled by Licensee.  For purposes of this Agreement, “use” of the Theme means accessing the Theme over a computer network. You acknowledge and understand that MACDUFF makes no representation or warranty as to the compatibility of the Theme with any specific operating environment or computing device.  
    2. Liability for Third Parties. Should Licensee make available any software, security credentials, or other means of access to the Theme to third parties, whether deliberately or through error or omission, Licensee agrees that any and all use of the Theme by such third parties, regardless of whether such use is specifically authorized or unauthorized by Licensee, shall be legally attributed to Licensee, and Licensee hereby accepts liability for any and all such use.
    3. Restrictions. All rights not expressly granted hereunder are reserved to MACDUFF. The License does not include (a) maintenance, support, upgrades, or modifications to the Theme other than as set forth herein, (b) derivative products developed by MACDUFF or anyone else to whom MACDUFF may license the Theme, or (c) a license or transfer of any intellectual property rights owned or controlled by MACDUFF or any MACDUFF affiliate, subsidiary, or parent.  Licensee shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, clone, disassemble, or otherwise attempt to derive source code from, or any internal data files generated by the Theme, rent, lease, or loan the Theme, or use the Theme in any manner that constitutes a breach of this Agreement or violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. 
    4. Use Reporting, License Violations, and Remedies. MACDUFF reserves the right to gather data on the Theme’s usage including license login identifications, security credentials, server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement.  MACDUFF reserves the right to remedy violations immediately upon discovery. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement.  Any blocking of data required for compliance under this Agreement is considered to be a violation of this Agreement and will result in immediate termination of this Agreement.
    5. Theft of License Login Identification.  If your license login identification is stolen, or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify MACDUFF of such occurrence.  Licensee acknowledges and agrees that Licensee shall be solely responsible for any and all liability resulting from such use.
    6. Grant of License to MACDUFF. The licensee exclusively owns all rights in and to information it stores on or places into the Theme ("Information").  MACDUFF needs a limited license from Licensee to use (i.e., display, perform, and distribute) Information to make the Theme available to you.  By providing information, you grant to MACDUFF a limited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide license to use, modify, perform, display, reproduce and distribute the Information for the sole purpose of operating the Theme and providing related services.  
    7. Feedback.  You may provide MACDUFF with suggestions, recommendations, and other feedback as to the usefulness and functionality of the Theme (“Feedback”).  MACDUFF shall have an unlimited, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide license to use, incorporate into the Theme, modify, perform, display, reproduce and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the operation or features of the Theme. 
  3. LICENSE FEES.  Upon acceptance of this Agreement, you must pay the requisite license fees, using the procedure set forth on the Zendesk website. The license fees paid by you are paid in consideration of the license granted under this Agreement. MACDUFF does not refund license fees. By accepting this Agreement you fully understand that once the license fee payment is made to Zendesk or MACDUFF you will have no recourse for receiving a refund of any part of the fees.
  4. TERM AND TERMINATION. The term of this Agreement shall begin upon your downloading, accessing, or using the Theme even if you have not expressly accepted this Agreement and shall continue unless and until it is terminated by MACDUFF in the event Licensee violates the terms and conditions of this Agreement.  Upon the termination of this Agreement, all license rights granted hereunder shall terminate in full and without notice, and Licensee shall immediately cease use of the Theme.  Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this Agreement, including but not limited to indemnification, shall so survive. 
  5. OPEN SOURCE SOFTWARE.  The Theme may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third-party open-source licenses, and not the terms of this Agreement.  If any such license requires MACDUFF to deliver the source code for such component to Licensee, MACDUFF shall do so upon request at a nominal fee.
  6. CONFIDENTIALITY.  You acknowledge and agree that in permitting you access to and use of the Theme, MACDUFF will be disclosing to you certain confidential, proprietary, and/or trade secret information related to the Theme or MACDUFF (the “Confidential Information”). Such Confidential Information shall include, without limitation, any know-how, trade secrets, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans, or reports made available to you.  You agree that you will not, without the express prior written consent of MACDUFF, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (i) is or becomes generally available to the public through any means other than as a result of any act or omission by you; (ii) is rightfully received by you from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (iii) is independently developed by you without any reliance on any Confidential Information.  At the termination of this Agreement or at any time by request of MACDUFF, you will return all Confidential Information in your possession to MACDUFF.
  7. INDEMNIFICATION.  Licensee shall indemnify, defend, and hold harmless MACDUFF (and its officers, directors, employees, and agents) from and against any and all claims, suits, liability, damages, losses, costs, or expenses (including reasonable attorneys' fees) which result from your use of the Theme and/or from your failure to comply with this Agreement.  
  8. NO WARRANTIES. MACDUFF LICENSES THE THEME TO LICENSEE ON AN “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, MACDUFF DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO THEME. LICENSEE ACKNOWLEDGES THAT THE OPERATION OF THEME MAY NOT BE UNINTERRUPTED OR ERROR-FREE, AND THAT ERRORS MAY NOT BE CORRECTED.  MACDUFF IS NOT RESPONSIBLE IN ANY WAY FOR ANY INTERFERENCE, ERRORS, OR PREVENTION OF LICENSEE'S ACCESS TO OR USE OF THE THEME.  IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE THAT THE THEME MEETS THE NEEDS OF YOUR BUSINESS AND IS SUITABLE FOR THE PURPOSES FOR WHICH IT IS USED.  YOU REMAIN SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS.   MACDUFF EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN THE THEME AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES
  9. LIMITATION OF REMEDIES AND DAMAGES. TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, (A) MACDUFF SHALL NOT BE LIABLE TO THE LICENSEE UNDER THIS AGREEMENT ON ANY CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE THEME; AND (B) IN NO EVENT SHALL MACDUFF BE LIABLE TO LICENSEE FOR ANY CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INTERRUPTION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, ARISING OUT OF THIS AGREEMENT, EVEN IF MACDUFF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  MACDUFF'S LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY LICENSEE AS A RESULT OF MACDUFF'S NEGLIGENCE OR FAILURE TO COMPLY WITH THESE TERMS OF USE SHALL BE LIMITED IN RESPECT OF ANY ONE INCIDENT, OR SERIES OF CONNECTED INCIDENTS, TO THE FEES PAID BY LICENSEE FOR THE THEME.
  10. PRIVACY AND DATA SECURITY. MACDUFF agrees that it shall use best efforts to (i) keep and maintain Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and (ii) use and disclose Information solely and exclusively for the purposes for which the Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Information for MACDUFF's own purposes or for the benefit of anyone other than Licensee, in each case, without Licensee's prior written consent.  MACDUFF reserves the right to disclose any information as necessary to satisfy any applicable law, legal requirement, police investigation, or a request from a government authority.  For further information, please read our Privacy Policy [https://729solutions.com/privacy-policy/].
  11. MAINTENANCE AND SUPPORT. MACDUFF has no obligation to provide maintenance and support for the Theme.  
  12. NO UNLAWFUL OR PROHIBITED USE.  As a condition of your use of the Theme, you warrant that you will not use the Theme for any purpose that is unlawful or prohibited by this Agreement. You may not use the Theme in any manner which could damage, disable, overburden, or impair the Theme or interfere with any other party's use and enjoyment of the Theme.  You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Theme. The following is a non-exclusive list of actions that MACDUFF considers to be inappropriate and thus prohibited.  The examples identified in this list are provided as examples only for your guidance.  If you are unsure whether any contemplated use or action is permitted, please contact MACDUFF. 
    • Using the Theme for any activity that violates any local, state, federal, or international law, order, or regulation.
    • Using the Theme to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting or otherwise) which is inappropriate, profane, obscene, indecent, pornographic, libelous, harassing, constitutes a threat or encourages bodily harm or destruction of property, or otherwise objectionable or unlawful.
    • Using the Theme to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting, or otherwise) that infringes copyright, trademark, patent, trade secret, or other proprietary rights of any third party. 
    • Using the Theme to make fraudulent offers to buy or sell products, items, or services, or to advance any type of financial/soliciting scams including, but not limited to, “pyramid schemes,” “Ponzi schemes,” “mail bombing,” and “chain letters.”
    • Any fraudulent activities, including impersonating any person or entity or forging anyone else's digital or manual signature.
    • Disrupting or interfering with the Theme in any way, including through the uploading of files that contain viruses, worms, “Trojan horses,” or other software or programs that may be damaging to the Theme or another user’s computer.
    • Using the Theme to transmit, or to facilitate the transmission of, any unsolicited commercial e-mail or unsolicited bulk e-mail.
    • Using the Theme to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of the Theme or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
    • Using the Theme to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
    • Reselling the Theme.
    • Using the Theme for any activity that adversely affects the ability of other people or systems to use the Theme or the Internet.
    • Using the Theme for excessive posting or cross-posting of the same or substantially similar messages, or binary files to newsgroups not specifically named for that purpose, or flooding or disruption of Usenet newsgroups.
    • Using the Theme to perform chat “flooding”, maintaining more than two simultaneous chat discussions, using the Theme to connect to chat servers or channels from which they have been previously banned, or forging, altering, or obscuring your identity while participating in chat sessions.
    • Using the Theme to post any content that holds MACDUFF up to public scorn or ridicule or would any way damage or impair MACDUFF's reputation or goodwill.
  1. INJUNCTIVE RELIEF. Licensee understands and agrees that its breach of this Agreement will cause MACDUFF irreparable damage for which recovery of money damages would be inadequate and that MACDUFF shall therefore be entitled to obtain timely injunctive relief to protect MACDUFF’s rights under this Agreement in addition to any and all remedies available at law, without the necessity of a bond.
  2. COPYRIGHT AND TRADEMARK NOTICES. All trademarks are owned by MACDUFF and its affiliates and subsidiaries. The content, organization, graphics, design, compilation, magnetic translation, digital conversion, and other matters related to the Theme are protected under applicable copyrights, trademarks, and another proprietary (including but not limited to intellectual property) rights.  Other than as expressly permitted in the "LICENSE" Section above, the copying, redistribution, use, or publication by you of any such matters or any part of the Theme, is strictly prohibited.  You do not acquire ownership rights to any article, document, or other materials viewed through the Theme.  The posting of information or materials on the Theme does not constitute a waiver of any right in such information and materials.  Some of the content on the Theme may be the copyrighted work of third parties.  Nothing contained in the Theme should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by MACDUFF or any third party.
  3. CHANGES TO THIS AGREEMENT. MACDUFF reserves the right at its sole discretion to revise, amend, or modify this Agreement from time to time.  Notice of any revision, amendment, or modification will be posted on the website through which Licensee accesses the Theme, and/or by email to your primary email and will be effective on the date noted in the posting. This Agreement may not be amended or modified by Licensee.  By continuing to use the Theme after the amendments are effective, Licensee accepts and agrees to abide by them.  If you do not accept the amended terms, please discontinue your use of the Theme.
  4. GENERAL PROVISIONS. This Agreement is governed by and shall be construed in accordance with the domestic laws of the State of California, excluding any conflict-of-laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction. This Agreement is the entire agreement between the parties on the subject matter hereof and supersedes all prior communications or agreements, written or oral.  The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other.  In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Licensee may not assign or transfer this Agreement (by operation of law or otherwise) without the prior written consent of MACDUFF and any prohibited assignment or transfer will be null and void, but MACDUFF may freely assign or transfer this Agreement. This Agreement will be binding upon and will insure to the benefit of the parties' permitted successors and/or assignees. A waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
  5. CONTACTING US.  If you have any questions, comments, or complaints concerning this Agreement, please contact us at (415)985-7073, e-mail us at support@729solutions.com, or send any correspondence to MacDuff Enterprises, Inc., 388 Market St, #1300, San Francisco, CA 94111, Attn: Randy Chang. Our representatives will endeavor to contact you within fifteen (15) days of your inquiry.

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