PLEASE READ THIS USER AGREEMENT (THE “AGREEMENT”) CAREFULLY PRIOR TO USING THIS WEB SITE OR ANY OTHER SERVICE OR MATERIALS PROVIDED ON THIS SITE AND PRIOR TO DOWNLOADING ANY SOFTWARE FROM THIS SITE.
Nocturnal Coding Monkeys LLC (referred to as “we”, “us”, “our” or other such similar terms) is the owner and operator of this website and the software, products and services sold thereon.
Eligibility. We intend that this website and the products, software, materials and services provided hereon (collectively, the “Software”) be used by adults only and Users that can form legally binding contracts under applicable law. Without limiting the foregoing, this website and the Software should not be used by minors. If you do not qualify, you are not permitted to use this website or order any products or services provided thereon, and you do not have our consent to do so.
Fraud. Without limiting any other remedies, we may suspend or terminate your account or your license to use the Software if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with this website or to have otherwise violated this Agreement.
Links to Third Party Websites. We may provide links to web pages which are not part of the our web family. These sites are not under our control and we are not responsible for the information or links you may find there. We are providing these links only as a convenience. The presence of these links on any of our websites is not intended to imply our endorsement of that site but to provide a convenient link to relevant sites which are managed by other organizations, companies, or individuals. Accordingly, this Agreement does not apply to your use of unaffiliated sites to which this site only provides links.
Use of the WebSite and Software. The contents of this website and the Software provided thereon are protected by copyright, trademark, trade secret and other laws and are the sole and exclusive property of us and/or other owners. Conditioned on your ongoing compliance with the terms of this Agreement, we grant to you during the Term, a personal, nonassignable, nontransferable, non-sublicensable, nonexclusive, revocable, limited right and license for only you and your Users to download, access and use the Software on a single personal computer, solely for your and your User’s own internal and non-commercial use, for the purposes for which the Software was designed, and subject to the restrictions of this Agreement. “Users” mean only individuals using the Software for its intended, non-commercial purpose, on your one personal computer. You are obligated to ensure that your Users are aware of and comply with, the limitations on the use of the Software, including the confidentiality and other obligations under this Agreement.
We have no responsibility for providing you with any computer hardware or other equipment. You shall be solely responsible for providing a proper environment to utilize the Software.
You do not have the right to copy, sublicense, resell or redistribute the Software, nor otherwise provide or allow any party other than Users to have access to or use of the Software, in whole or in part, nor use the Software in any way which violates any applicable laws or regulations. Except as expressly set forth herein, no express or implied license or right of any kind is granted herein regarding the Software, including any right to obtain possession of any source code, object code or other technical material relating to the Software, or regarding any of our other intellectual property rights. All rights not expressly granted to you in writing herein are reserved to us and no rights or licenses shall be deemed granted by implication, estoppel or otherwise. We reserve the right, in our sole discretion and with prior notice to you, to modify, discontinue, add, adapt, or otherwise change any design or specification of the Software and/or our policies, procedures, and requirements specified in or related hereto, which will not materially degrade the functionality of the Software.
You are responsible for your own and Users’ continual compliance with this Agreement and other guidelines released by us from time to time. You will not, and will not permit others to, engage in activities prohibited by us (and will investigate any alleged violations thereof by Users), including, without limitation: (i) intentionally accessing data not intended for use by you or Users (ii) attempting to breach security or authentication measures without proper authorization or interfere with the Software, (iii) taking any action in order to obtain Software to which you and Users are not entitled, or (iv) assisting or permitting any persons in engaging in any of the activities described above.
By virtue of this Agreement, you acquire only a non-exclusive license as described above to use the Software provided by us and you do not acquire any rights of ownership in such materials, including any custom modifications. You will not yourself nor permit Users or any other party to (i) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the Software; (ii) alter, modify, or prepare derivative works based on the Software; or (iii) use any part of the Software to create, invent or develop any computer program or other invention, work or device that performs, replicates, or utilizes the same or substantially similar functions as the Software.
You assume full responsibility for the data provided by you, which is stored or transmitted by means of the Software, and the use of such data, including the results obtained therefrom.
Your limited rights granted under this Agreement does not include any resale or redistribution of this website or its contents or the Software that are not expressly permitted hereunder; any collection and use of any Software, descriptions, or prices; any derivative use of this website or its contents; any downloading or copying of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. This website or any portion of this website, may not be reproduced, duplicated, copied, sold, resold, visited, modified or otherwise exploited for any commercial purpose without our express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information or materials (including images, text, page layout, or form) of ours or of any third party on this website without our express written consent. You may not use any meta tags or any other "hidden text" utilizing our name or trademarks without our express written consent. Any unauthorized use of this website terminates the permission and license granted by us. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of this website so long as the link does not portray us or any products or services offered on the website in a false, misleading, derogatory, or other manner which we deem offensive. You may not use any logo or other proprietary graphic or trademark on the website as part of the link without our express written permission. You will not use any device, software or routine to interfere or attempt to interfere with the proper working of the website. You will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
Ownership. We own and shall retain all rights and interest in the intellectual property rights in the website content, Software and our Proprietary Information, which includes without limitation, all software, source and object code, specifications, metrics, customizations, designs, processes, techniques, concepts, improvements, discoveries and inventions, including without limitation any modifications, improvements or derivative works thereof and all works of authorship or inventions created, invented, reduced to practice or delivered by us or any third party either solely or jointly with others, arising from this Agreement, including all copies and portions thereto, whether made by or under the direction of us or you.
Support Services. We will provide the support services as set forth below:
(i) Electronic Support: We will provide reasonable consultation and support over the Internet regarding the operation of the Software, including both technical and user issues.
(ii) Telephone Support: We will provide reasonable telephone support during our normal business hours.
(iii) Error Correction: In the event you encounter a material bug or malfunction in the Software, we will use reasonable efforts to verify the cause of the problem, and if the error is due to any act or omission of ours, our sole obligation shall be to use its reasonable efforts to correct the reported problem.
We will not provide any additional services unless we agree to do so in writing. Support also does not include updates, upgrades or new versions of the Software; such items will only be provided if you purchase them separately.
License/Support Term. Unless the parties have agreed in writing to a different term, the initial term of this Agreement shall be one year from the date you enter into this Agreement. This Agreement shall automatically renew for successive one (1) year terms unless either party provides the other with written notice of non-renewal of this Agreement at least thirty (30) days prior to the expiration of the then-current term. The initial term and any renewals thereof shall be referred to herein as the “Term”. The license to use the Software is perpetual. We will provide support for the Software at no additional cost to you for a period of at least six (6) months after a new, updated or upgraded version of the Software that you have licensed from us is released. After that six (6) month period, it will be solely within our discretion whether or not to provide you with continuing support for your version of the Software. So for example, if you license version 2.0 of Software and we release version 2.1, we will only be obligated to provide you with support for up to six (6) months after we release version 2.1.
Pricing and Payment. You will pay all fees pursuant to this Agreement as set forth in our online store “Pricing Schedule”, the current version of which is posted on this website at http://nocturnalcodingmonkeys.com and which is incorporated by reference as part of this Agreement. All payments will be made without withholding, deduction or offset. You will reimburse us for all costs, including our reasonable out-of-pocket (including travel and living) expenses incurred in performing our obligations hereunder. If you in good faith dispute any charges, you will provide written notice of such dispute to us within thirty (30) days of receipt of such charge, and shall pay any undisputed amount when due; your failure to comply with this procedure shall constitute your approval of such charge. You will reimburse us for all costs of collection, including reasonable attorneys’ fees. You will pay interest on all amounts not paid when due at the rate of 1.5% per month, or the highest lawful rate, whichever is less. In addition to any other right or remedy available to us at law or equity or under this Agreement, we have the right to suspend or terminate your use of the Software or any services we provide, for non-payment, in addition to any other remedies available at law or equity.
The fees for the Software or services do not include any charge for taxes, and you are solely responsible for paying any and all federal, state and local taxes (including without limitation any and all sales or use taxes or export/import taxes and customs duties) attributable to the Software or services, excluding only taxes based upon our net income.
Breach. Without limiting other rights or remedies set forth in this Agreement or as otherwise available by law, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to this website, Software and services in whole or in part: (a) if you breach this Agreement; (b) if we are unable to verify or authenticate any information you provide to us, should we elect to engage in such verification; or (c) if we believe in our sole discretion that your actions may cause legal liability for you, other users, us or third parties.
Limited Warranty/Warranty Disclaimers/Indemnification and Liability Limitations. We warrant that the Software will operate substantially in conformance with our then published technical specifications for a period of thirty (30) days after you download the Software (the “Warranty Period).
In the event of a breach of the foregoing limited warranty, as your sole and exclusive remedy, we will repair or replace the applicable Software or any portion thereof, with conforming Software. Repair or replacement may take the form of: (i) corrections to the Software; (ii) corrected documentation; or (iii) instructions or procedures to bypass the problem until a more permanent correction can be implemented. This limited warranty shall not apply to problems that result from (i) factors outside of our reasonable control; (ii) any failure by your Users to comply with this Agreement or use the Software in accordance with the documentation, or our other instructions, or any actions or inactions by third parties; (iii) your hardware, software, equipment and/or those of third parties, or errors in entering data; (iv) the fault or negligence of you, Users, operator error, improper use or misuse of the Software, or any other causes external to us or the Software.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, SOFTWARE AND ALL OTHER MATERIALS OR INFORMATION PROVIDED BY US, ARE PROVIDED ON AN AS-IS BASIS AND WE MAKE NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; WE HEREBY EXPRESSLY DISCLAIM ANY AND ALL SUCH WARRANTIES. MOREOVER, WE DO NOT WARRANT THAT ALL ERRORS CAN OR WILL BE CORRECTED OR THAT THE SERVICES AND SOFTWARE WILL OPERATE WITHOUT ERROR.
Indemnification. You will indemnify, defend and hold us, our affiliates and subsidiaries and their respective directors, officers, employees and representatives (collectively, “Indemnitees”) harmless from any and against any claims, damages, losses, liabilities, causes of action or injuries, together with all costs and expenses, including penalties, interest levied, reasonable attorneys fees and court costs, arising out of or resulting from your alleged (i) breach of your obligations, representations or warranties set forth in this Agreement; or (ii) violation of any laws or rights of third parties (including intellectual property rights).
You agree to indemnify, defend and hold us, our subsidiaries and strategic partners, and each of their and our officers, directors, agents, owners, employees, independent contractors and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable attorneys' fees, due to or arising out of the following events: (i) your giving us any information which is inaccurate; (ii) your negligence or willful misconduct; (iii) your violation of any law, regulation or right of any third party; (iv) any dispute or action between you and any third party, including parties selling goods or services through this website; and (v) your use of this website or the products or services of us (including the Software) or any third party, except for claims resulting solely from our negligence or willful misconduct.
In the event that any of the services or Software become, or in our opinion are likely to become, the subject of a claim of intellectual property infringement, we may at our option and expense (1) secure for you the right to continue using the allegedly infringing items (2) replace or modify the allegedly infringing items to make them non-infringing (3) litigate with the party alleging infringement or (4) terminate this Agreement. The foregoing is your sole and exclusive remedy relating to any such infringement claim. We have no obligation in connection with any claim or allegation to the extent resulting from: (i) the improper, unauthorized or negligent use of the Software or services provided by us; (ii) the use of the Software or services provided by us other than in accordance with this Agreement or the documentation, manuals or our other written instructions or specifications; (iii) modifications or alterations to any of the Software or services which are made pursuant to specifications or instructions provided by you (iv) modifications or alterations to any of the Software which are made by you or any other person or entity other than us, or (v) any software, content, data or services provided by us, as used in combination or used in conjunction with, third party software.
Limitations of Liability. NEITHER WE NOR OUR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WILL BE LIABLE TO YOU OR YOUR USERS OR OTHERS FOR ANY CLAIMS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES, SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH DAMAGES OR CLAIMS ARE BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHERWISE. OUR MAXIMUM LIABILITY FOR ANY DAMAGES OR INJURIES UNDER THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU FOR THE SOFTWARE PROVIDED HEREUNDER. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIABILITIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Confidentiality. You agree (i) to hold our Proprietary Information in the strictest confidence (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, except as may be expressly permitted under this Agreement and (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement. The nondisclosure and confidentiality obligations set forth herein shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof under applicable law, and with respect to Confidential Information for a period of three (3) years after termination hereof. “Confidential Information” means nonpublic proprietary information other than Trade Secrets, of value to its owner, and any data or information defined herein as a Trade Secret but which is determined by a court of competent jurisdiction not to be trade secret under applicable law. “Trade Secrets” means information which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. “Proprietary Information” means, collectively and without regard to form, any third party information that either party has agreed to treat as confidential, information regulated by state or federal law concerning disclosure or use, Confidential Information, and Trade Secrets.
Termination. Either party may terminate this Agreement and the Services and rights granted herein if the other party materially breaches any of the provisions of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice thereof. Termination of this Agreement shall not constitute either party's exclusive remedy for breach or non-performance by the other party, and each party shall be entitled to seek all other available remedies, both legal and equitable, including injunctive relief.
Should you (i) admit in writing your inability to pay your debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt; (iv) consent to the filing of a petition of bankruptcy against you; (v) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (vi) seek reorganization under any bankruptcy act; (vii) consent to the filing of a petition seeking such reorganization; or (viii) have a decree entered against you by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of your property or providing for the liquidation of your property or business affairs; then, in any such event, we may, at our option and without prior notice, terminate this Agreement effective immediately.
Upon termination or expiration of this Agreement for any reason (i) all rights granted under this Agreement to you will terminate and we shall immediately discontinue all access to the Software and any services provided hereunder and (ii) you will return all documentation related to the Software.
All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement, shall survive, including obligations regarding Proprietary Information.
Notices. Except as explicitly stated otherwise or in a separate written agreement between you and us, any notices shall be given by postal mail to us at 4787 julain way, acworth, ga 30101 and to you at the email address you provide to us. Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided by you. In such case, notice shall be deemed given 3 days after the date of mailing.
Choice of Law, Headings and Non-waiver. This Agreement shall be exclusively construed, interpreted, governed and enforced in accordance with the laws of the State of Georgia, USA without regard to rules governing conflicts of laws. The parties further agree that this Agreement shall be deemed to have been negotiated, entered into, executed and performed for all purposes within the State of Georgia. Either party’s failure to act with respect to a breach does not waive the non-breaching party’s right to act with respect to subsequent or similar breaches. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Any action related to or arising out of this Agreement shall be venued solely in a State or Federal court of competent jurisdiction located in the State of Georgia, Fulton County and the parties irrevocably commit to the jurisdiction and venue of said courts and waive any right to object thereto.
Severability. The invalidity of any portion of this Agreement will not affect the validity of any other provision and any such finding of invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In the event that any provision of this Agreement is held to be invalid or unenforceable, the parties agree that the remaining provisions will be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. It is expressly understood, however, that the parties hereto intend each and every provision of this Agreement to be valid and enforceable and hereby knowingly waive all rights to object to any provision of this Agreement to the full extent permitted by law. Accordingly, if any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision(s) will, rather than be stricken in their entirety, be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
Waiver. The failure of either party at any time to require performance by the other party of any provision hereof is not to affect in any way the full rights of such party to require such performance at any time thereafter, nor is the waiver by either party of a breach of any provision hereof to be taken or held to be a waiver of the provision itself or any future breach.
Relationship of the Parties. The parties hereto are independent contractors, and nothing in this Agreement is to be construed to create a partnership, joint venture, or agency relationship.
Force Majeure. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that such failure or delay is due to any cause or circumstance reasonably beyond the control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, government requirement, or civil or military authority. The party affected by such an event shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.
Entire Agreement; Amendment. This Agreement contains the entire Agreement of the parties relating to its subject matter and supersedes any prior or contemporaneous agreements, negotiations, correspondence, understandings or communications, whether oral or written. This Agreement may not be modified or amended except in writing, signed by both parties, or as otherwise provided herein. Because of changes in Internet technology and practices, this Agreement and our security and other policies may change from time to time. We will provide you with email notices regarding any changes to this Agreement. Please consult this portion of the website for important changes to the Agreement as they occur. By using the website after we notify you by email and thereafter post any changes to this Agreement, you agree to accept those changes, whether or not you have reviewed them, and such acceptance shall be deemed legally conclusive. If at any time you choose not to accept the terms of this Agreement, you will not use the website, any services or the Software nor continue to purchase any of the foregoing. This Agreement applies to your use of this website or other sites that we may own or operate in the future, unless such sites provide otherwise.
Continuing Cooperation. The parties agree to execute any documents or perform such other and further acts as are reasonably necessary to comply with the letter and spirit of this Agreement.