CRAFT BY INVISION - LICENSE AGREEMENT
Effective Date of Terms of Service: March 25, 2020
INVISIONAPP INC. (“INVISION”) LICENSES THE CRAFT SOFTWARE AND RELATED DOCUMENTATION (DEFINED BELOW) (COLLECTIVELY, “SOFTWARE”) PURSUANT TO THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”). BY CLICKING ON THE “DOWNLOAD” LINK, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE AND YOU WILL NOT HAVE ANY LICENSE TO ANY PART OF THE SOFTWARE. INVISION’S ACCEPTANCE OF THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.
IF YOU ARE ACCESSING AND OR USING THE SOFTWARE ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE ALL RIGHT POWER AND AUTHORITY NECESSARY TO BIND SUCH ENTITY TO THIS AGREEMENT. ALL REFERENCES TO “YOU” OR “LICENSEE” HEREIN SHALL BE DEEMED TO INCLUDE BOTH THE INDIVIDUAL USER AND THE ENTITY, AND THE ENTITY SHALL BE RESPONSIBLE FOR ALL THE ACTS OR OMISSIONS OF THE INDIVIDUAL IN CONNECTION WITH THE SOFTWARE.
INVISION ENCOURAGES LICENSEE TO READ THIS AGREEMENT CAREFULLY AND ASSESS ITS USE OF THE SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE.
Please note that if you downloaded the Software prior to March 25, 2020, then such version of the Agreement, available here, shall continue in effect until you re-download the Software, at which time this version of the Agreement shall be effective. Use of the Software is subject to this version of the Agreement if you downloaded it after March 25, 2020. If you are using a screen reader and are having problems using this website, please contact [email protected].
1. SOFTWARE LICENSE. Subject to compliance with all of the terms and conditions of this Agreement, InVision grants to Licensee, a limited, revocable, nontransferable, nonexclusive license to use the Software for the term specified in Section 4 below (a) in object code form and (b) in accordance with the associated documentation provided by InVision (“Documentation”). Each downloaded copy of the Software may only be used by one user. Licensee may make a single copy of the Software for safekeeping or "backup" purposes, provided all original proprietary notices are retained on any such copy.
3. RESTRICTIONS ON USE. InVision and its licensors shall at all times retain title to and ownership of the Software and the intellectual property rights therein. Licensee may not, directly or indirectly, (a) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), attempt to discover the source code or underlying ideas or algorithms of the Software or otherwise circumvent any technological measure that controls access to the Software; (b) create derivative works based on the Software; (c) copy (except for the purposes set forth above), display, perform, rent, lease, distribute, or otherwise transfer rights to the Software; (d) sell, license, sublicense, rent or lease the Software, or use the Software for timesharing or service bureau purposes; (e) use the Software or any of the output generated by the Software to develop a competing product or service; (f) use the Software to conduct any benchmarking or similar tests or reports; (g) remove any proprietary notices or labels on the Software; (h) use the Software outside of any use restrictions set forth in the Documentation or as otherwise provided by InVision, or (i) bypass, circumvent or attempt to bypass or circumvent any measures InVision may use to prevent or restrict access to the Software (or other accounts, computer systems or networks connected to the Software) or take any action that imposes or may impose (as determined by us in InVision’s sole discretion) an unreasonable or disproportionately large load on InVision’s (or InVision’s third party providers’) infrastructure. Licensee is responsible for maintaining the security of its account and passwords, and for using commercially reasonable security and anti-virus measures when using or uploading data to the Software. Licensee shall not provide InVision with any personally identifying information except for user information as necessary to allow its users to access the Software as set forth in this Agreement. InVision may suspend access to the Software by Licensee pending an investigation of misuse. This Agreement is a license, not a sale of the Software and does not give Licensee any rights not expressly granted herein. Title and any related rights in the content accessed through use of the Software are the property of the applicable content owner and are protected by applicable law. The licenses granted pursuant to this Agreement give Licensee no rights to such content.
4. TERM. This Agreement and the rights and obligations granted herein shall commence on the date on which Licensee clicks the “DOWNLOAD” link and shall continue indefinitely unless this Agreement is terminated in accordance herewith.
5. TERMINATION. Licensee may terminate this Agreement and the licenses granted herein at any time by destroying or removing from all computer systems all copies of the Software. InVision may (a) terminate this Agreement immediately upon notice to Licensee for any or no reason at all; or (b) suspend or limit Licensee’s access to or use of the Software if Licensee’s use of the Software results in (or is reasonably likely to result in) damage to or material degradation of the Software which interferes with InVision’s ability to provide access to the Software to other users. This Agreement and the licenses granted herein will immediately and automatically terminate (i) if Licensee breaches any provision of this Agreement; (ii) if Licensee becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement or comparable proceeding; or (iii) as otherwise set forth in Section 12 below. Upon any termination or expiration of this Agreement, Licensee shall (A) discontinue all use of the Software; (B) immediately destroy or erase all copies of the Software; and (C) return or destroy all InVision Confidential Information (defined below). All provisions of this Agreement which by their nature should survive termination shall survive termination, including without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
6. TAXES. Licensee will be responsible for all taxes (including sales, use, property, excise, value added and gross receipts but not including taxes based on InVision’s income), import duties and fees and charges of any kind levied or imposed by any federal, state or local governmental entity with respect to the Software.
7. CONFIDENTIALITY. Licensee acknowledges that the underlying source code and object code of the Software are the confidential and proprietary information of InVision (“Confidential Information”). In no event will Licensee reproduce, publish, disclose or use any Confidential Information other than as expressly permitted herein.
8. LICENSEE CONTENT, REPRESENTATIONS AND WARRANTIES. Licensee represents, warrants and covenants that Licensee has all necessary rights to upload, submit or provide any data, content, information or other material uploaded, submitted or provided by or on behalf of Licensee in the course of using the Software, and none of such data, content, information or other material shall (a) infringe upon the rights of any third party, including but not limited to trademark, copyright, patent, trade secret or other intellectual property or confidentiality rights; (b) violate any applicable law, rule or regulation; (c) breach any of Licensee’s contractual obligations to third parties; or (d) contain any viruses, code, files or programs designed or be intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or that is or can be otherwise malicious or disruptive. Licensee further represents, warrants and covenants that its use of the Software shall be in compliance with all applicable laws, rules and regulations.
9. UPDATES; FEEDBACK. Licensee may report bugs or issues in the Software to InVision or provide other feedback to InVision about the Software. InVision may at is sole discretion, but is not required to, provide maintenance or support under this Agreement. InVision may also, in its sole discretion, provide updates or releases related to the Software. Updates and releases may contain either or both enhancements to existing functions and corrections to defects and may or may not include additional features. Updates and releases may also require the execution of another license agreement with InVision. All updates and releases provided hereunder shall be deemed to be Software for purposes of this Agreement. Licensee hereby assigns to InVision all rights, title and interest, including all intellectual property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to the Software that Licensee or any of its representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Software.
10. DISCLAIMER; RELEASE. THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND INVISION HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE USE, SELECTION, QUALITY AND PERFORMANCE OF THE SOFTWARE. Licensee shall and hereby does waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor". Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee. Licensee may have other rights which vary from jurisdiction to jurisdiction.
11. Indemnification. Licensee is solely responsible for Licensee’s conduct related to the Software. Licensee shall defend, indemnify, and hold harmless InVision, its affiliates and each of its and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to Licensee’s use or misuse of, or access to, the Software, violation of this Agreement, or infringement by Licensee, of any intellectual property or other right of any person or entity. InVision reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee will assist and cooperate with InVision in asserting any available defenses.
12. LIMITATION OF LIABILITY. NEITHER INVISION NOR ITS LICENSORS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, DATA OR PROFIT, INTERRUPTION OF USE, STOPPAGE OF OTHER WORK, IMPAIRMENT OF OTHER ASSETS OR COMPUTER FAILURE OR MALFUNCTION; (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; (C) FOR ANY MATTER BEYOND INVISION’S REASONABLE CONTROL OR (D) FOR ANY DAMAGES IN EXCESS OF $500, EVEN IF INVISION OR ITS LICENSORS SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
13. INTELLECTUAL PROPERTY INFRINGEMENT. In the event that the Software is held by a court of competent jurisdiction or reasonably believed by InVision to constitute an infringement of a third party’s intellectual property rights, InVision may at its option (a) modify the infringing portion of the Software so that it is non-infringing; (b) procure for Licensee sufficient rights to continue to exercise its rights under this Agreement; or (c) terminate this Agreement and the license hereunder. This Section represents InVision’s sole liability, and the sole right and remedy available to Licensee, if the Software infringes the intellectual property rights of a third party.
14. NOTICES. All notices hereunder shall be in writing, in English, and (a) if to InVision, effective upon receipt and shall be sufficient only if personally delivered, delivered by a major commercial rapid delivery courier service or mailed by certified or registered mail, return receipt requested, to: InVisionApp Inc., Attn: Legal Department, 41 Madison Avenue, Floor 25, New York, NY 10010 or (b) if to Licensee, effective upon sending to the email address on file with InVision.
15. EXPORT CONTROLS. Licensee shall comply with all applicable export laws, restrictions, and regulations of the United States or foreign agency or authority. Licensee will not export, or allow the export or re-export of, the Software in violation of any such laws, restrictions or regulations. Licensee shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of the Software to any location in compliance with all applicable laws and regulations prior to delivery thereof by InVision.
16. U.S. GOVERNMENT RESTRICTED RIGHTS. InVisionprovides the Software, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under this Agreement, it must negotiate with InVision to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
17. ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
a. ARBITRATION; CLASS ACTION WAIVER. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND INVISION (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH INVISION, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE SOFTWARE, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS THEN IN EFFECT, AND YOU AND INVISION HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE INVISION’S INTELLECTUAL PROPERTY RIGHTS, INVISION MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND INVISION WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. AS AN ALTERNATIVE, INVISION MAY BRING YOUR CLAIM IN YOUR LOCAL "SMALL CLAIMS" COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT'S RULES AND IF WITHIN SUCH COURT’S JURISDICTION, UNLESS SUCH ACTION IS TRANSFERRED, REMOVED OR APPEALED TO A DIFFERENT COURT. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. NEITHER YOU NOR INVISION WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS PRODUCT LICENSING AGREEMENT TO ARBITRATE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST INVISION INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's use of the Software, if InVision is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of theSoftware or this Agreement must be filed within one (1) year after such claim of action arose or be forever banned.
b. 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 9, you must notify InVision in writing within 30 days of the date that you first accept this Agreement (unless a longer period is required by applicable law). Your written notification must be mailed to InVision at the InVision contact address listed above (“Notice Address”). If you do not notify InVision in accordance with this Section 9(b), you agree to be bound by the arbitration and class-action waiver provisions of this Agreement, including such provisions in any terms revised after the date of your first acceptance. Such notification must include: (i) your name; (ii) your user name; (iii) your mailing address and (iv) a statement that you do not wish to resolve disputes with InVision through arbitration. If InVision makes any changes to the Arbitration and Class Action Waiver section of this Agreement (other than a change to the address at which InVision will receive notices of dispute, opt-out notices, or rejections of future changes to the Arbitration and Clause Action Waiver section), you may reject any such change by sending InVision written notice within 30 days of the change to the Notice Address. It is not necessary to send InVision a rejection of a future change to the Arbitration and Class Action Waiver section of this Agreement if you had properly opted out of the arbitration and class-action waiver provisions in this Section 9 within the first 30 days after you first accepted this Agreement. If you have not properly opted out of the arbitration and class-action waiver provisions in this Section 9, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject. This notification affects this Agreement only; if you previously entered into other arbitration agreements with InVision or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in this Agreement shall not affect the other arbitration agreements between you and InVision.
c. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration and Class Action Waiver section will be null and void. This arbitration agreement will survive the termination of your relationship with InVision.
18. Open Source. The Software may contain or be distributed with open source software or other third-party software which may be covered by a different license. Notwithstanding anything to the contrary, the obligations of InVision set forth in this Agreement do not extend to any open source software or such other third-party software which may be made available by InVision, or otherwise obtained or used by you. You agree that all open source software or such other third-party software shall be and shall remain subject to the terms and conditions under which it is provided, and you shall be responsible for compliance with such terms. To the fullest extent possible, InVision disclaims all warranties and liability regarding such open source and third-party software in accordance with the terms of this Agreement.
19. Limitation of Claims. Any claim related to this Agreement or the Software must be brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed, then that claim is permanently barred. This applies to you and your successors.
20. Minimum Age. You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Software. InVision may, in InVision's sole discretion, refuse to offer the Software to any person or entity and change its eligibility criteria at any time. The right to access the Software is revoked where this Agreement or use of the Software is prohibited or to the extent offering or provision of the Software conflicts with any applicable law, rule or regulation.
21. Prohibited Transactions. InVision is generally prohibited from providing services to parties located in countries that are the target of U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC) and to parties that are included on U.S. sanctions lists (and in each case, applicable international equivalents thereof), and you represent and warrant that you are not such a party. InVision reserve’s the right to refuse transactions in compliance with sanctions administered by OFAC and its international equivalents.
22. MISCELLANEOUS. This Agreement shall be governed by the laws of the United States and the State of New York without regard to the conflicts of laws provisions thereof. InVision and Licensee hereby agree that the sole and exclusive jurisdiction and venue for any litigation arising out of or relating to this Agreement or the subject matter hereof shall be in an appropriate federal or state court in New York, New York, USA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement together with any Documentation represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them with respect to the subject matter hereof. This Agreement may be amended only by a writing executed by duly authorized representatives of both parties. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable. The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. Every exemption from liability, limitation and condition contained in this Agreement for the benefit of InVision and every defense and immunity applicable to InVision or to which InVision is entitled will also be available and extend to every parent company, subsidiary, affiliate, and licensor of InVision and their respective directors, officers, employees, agents and independent contractors. Licensee formally and irrevocably grants its consent to any assignment, substitution or any other legal action required to make the previous sentence fully enforceable. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is not intended to nor shall it be construed as a joint venture, association, partnership or other form of business or agency relationship. Any waivers shall be effective only if made in writing executed by duly authorized representatives of both parties. InVision’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision. In any action to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. Licensee acknowledges and agrees that due to the unique nature of the Software, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may result in irreparable harm to InVision, and therefore, that upon any such breach or threat thereof, InVision shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
23. ACKNOWLEDGEMENT. Licensee acknowledges and agrees that it has read and understands this Agreement and that this Agreement has the same force and effect as a signed agreement.