1. License. Brandopoly grants you a limited, non-exclusive License to access and use the Templates on the Brandopoly.com website for your personal use only pursuant to this Agreement, provided that you may not download (other than page caching) or modify the Templates, or any portion thereof, except with Brandopoly’s express prior written consent or as specifically authorized in this Agreement. The Templates are not a product being purchased by you and title to the Templates shall not pass to you.
2. Actions Not Permitted. The License does not include: (a) any resale of the Templates or the Content, which is the separate text, graphic, photographic or other content within the Templates; (b) the right to create any derivative works from the Templates or the Content; or (c) any use of data mining, robots, or similar data gathering and extraction tools. You have no right or license to modify, rent, lease, loan, adapt, translate, create derivative works based (whether in whole or in part) on, decompile, reverse engineer, disassemble the Content or Templates and you shall not grant or attempt to grant others any of the foregoing rights.
3. Terms and Conditions; Password and Account. The License is provided subject to the Terms and Conditions that Brandopoly may establish and post from time to time. You are solely responsible for establishing an Account on the Website to access the Templates and to maintaining the confidentiality of your Account’s password. You may not transfer, lend or allow access to your Account or the Templates to any third party. You must complete the registration form to establish the Account and you must provide true, accurate, current, and complete information about yourself as requested during that process.
4. Suspension or Termination of Account. If Brandopoly determines that you have used the Content, the Templates or the Website (under the Terms and Conditions) in any unauthorized or impermissible manner, Brandopoly shall immediately terminate your License and/or your access to your Account.
5. License Fee. In consideration of Brandopoly granting this License, you agree to be bound by the Terms and Conditions described in Paragraph 3 above and by the provisions of this Agreement. In addition, certain types of Accounts will require you to pay to Brandopoly a monthly license fee based on the service and payment plan option you have selected according to the Fee Schedule. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by Brandopoly. The Fee Schedule is subject to change at any time in Brandopoly’s discretion. Brandopoly will attempt to notify you via email prior to any change to the Fee Schedule. Payment will be made by a valid credit card accepted by Brandopoly. You authorize Brandopoly to charge your credit card, in advance, for such amounts on a regular monthly basis. If Brandopoly is for any reason unable to effect automatic payment via your credit card, Brandopoly will attempt to notify you via email and your Account will be disabled until payment is received. Amounts paid for the License are not refundable. [FOR BETA TEST USERS: In consideration of your agreeing to participate in the beta test for the Templates, the License Fee, which would otherwise be imposed for the License, if any, is waived through December 31, 2009.]
6. Templates: Revisions. Brandopoly may modify the Templates or Website from time to time. At any time, Brandopoly may provide new or revised versions of the Templates to supplement, modify, enhance, reduce or replace the Templates available on the Website, however, Brandopoly has no obligation to develop or create new or revised Templates.
7. Your Obligations. You shall ensure that your use of the Templates under this Agreement is in accordance with all applicable ordinances, laws, and statutes that apply to the conduct of your business and your use of the Website. You are responsible for obtaining and paying for all access lines, telephone and computer equipment or other devices necessary to access and use the Website and the Account. You may not attempt to register any portion of the Templates or Content with the United States Patent and Trademark Office, the United States Copyright Office or any other governmental registry or agency in your own name. You may not modify, develop or create derivative works or trademarks from the Templates and you shall not remove, alter or permit anyone else to remove or alter any copyright, trademark, service mark or other proprietary or confidential notice of Brandopoly that appears in the Templates.
8. Indemnification. You shall indemnify, defend and hold harmless Brandopoly from any and all claims, suits, damages, attorney's fees, costs, and expenses arising from your breach of this Agreement and for your unauthorized use of the Website, Templates or Content, whenever and however asserted and established.
9. Infringing Templates. In the event some or all of the Templates are unable to continue to be utilized due to a third-party claim of infringement or other prohibition on use, Brandopoly will, at its sole option, either (a) procure the right for you to continue to use the Templates; (b) make such alterations, modifications or adjustments to the Templates so the use is permitted; (c) replace the Templates with a useable substitute; or (d) terminate this Agreement. You agree that upon receipt of notice that any of the Templates are the subject of an infringement or other claim, you will promptly discontinue all use of such Template and ensure that your employees and customers also discontinue their use of such Template.
10. Limited Liability. Your sole and exclusive remedy for any failure or nonperformance of the Templates or Account, for any reason, shall be for Brandopoly to use commercially reasonable efforts to adjust or repair the Account or Templates. In all events, Brandopoly’s total aggregate liability for damages to you, arising out of or in connection with this Agreement regardless of the form of the action, shall not exceed the License Fees you paid over the prior twelve (12) months.
THE TEMPLATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE TEMPLATES AND YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE TEMPLATES. BRANDOPOLY DOES NOT WARRANT THAT THE TEMPLATES WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE TEMPLATES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS. YOU ASSUME RESPONSIBILITY FOR SELECTING THE TEMPLATES TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE USE AND RESULTS OBTAINED FROM THE TEMPLATES.
EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT SHALL BRANDOPOLY BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE TEMPLATES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
11. Trademarks. The Brandopoly name and logo are owned and registered by Brandopoly or its licensor. Nothing contained herein shall be construed as granting any license or right for you to use the Brandopoly name or trademarks without Brandopoly’s prior written consent.
12. Term and Termination. This Agreement shall begin as of the Effective Date and shall continue in full force and effect until terminated by Brandopoly or you.
You may terminate this Agreement at any time through your Account on the Website. Brandopoly may terminate this Agreement, the License or disable your Account at any time with or without cause, and with or without notice. There are no refunds for any fees paid, including the License Fee, provided that Brandopoly may elect, but is under no obligation to, refund a pro rata portion of the License Fee if it elects to terminate this Agreement without cause.
13. Rights Upon Termination. Upon termination of this Agreement, you shall immediately cease use of the Templates. After termination, Brandopoly reserves the right to delete all account and subscriber information from its system. Brandopoly will attempt to contact you via email prior to taking any permanent removal actions. In the event of a termination due to a violation of this Agreement, the Terms and Conditions or any applicable law, Brandopoly reserves the right to recover unpaid amounts and/or damages through any and all means (including, but not limited to, credit cards on file). All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
14. Miscellaneous. This Agreement contains the entire understanding between the parties with respect to the License of the Templates. All notices and other communications shall be in writing and shall be sent be electronic mail. If any provision of this Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. By posting updated versions of this Agreement on the Website, or otherwise providing notice to you, Brandopoly may modify the terms of this Agreement in its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Website.
15. Governing Law. This Agreement is governed by and shall be construed under the laws of the State of Tennessee without respect to the conflict of laws provisions thereof. Any action or proceeding brought by either party against the other party arising out of or related to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located in Robertson County, Tennessee. You agree that any claim or cause of action arising out of your use of the Templates must be filed within one (1) year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary.
16. Assignment. Brandopoly may assign, sub-license or transfer this Agreement or its rights and obligations to any person or entity. You shall not assign, sub-license or transfer this Agreement, the License or any of your rights or obligations to any third-party without the prior, written consent of Brandopoly.