Please review this document carefully. By accepting this End User License Agreement (the “Terms”), whether by submitting your information in connection with your interest in the Services (defined below) or otherwise indicating your acceptance online (e.g. clicking a button or checking a box), you are agreeing to these Terms. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, and in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with any of the provisions or conditions of these Terms, you must not accept these Terms and may not use the Services.
These Terms are entered into by and between Tweak, a registered Irish company CRN 447835, with offices located at Bank House, Lower Bridge Street, Killorglin, County Kerry, Ireland (“Company”), and the individual, company or other entity subscribing to the Services (“you”).
In consideration of the mutual agreements set forth in these Terms and the payment of fees, you and Company agree as follows:
• SERVICES AND INTELLECTUAL PROPERTY
• Company, through, Tweak® applications, offer you the ability to
• Customize text, colors and imagery in Tweak files designs and save those designs in your account.
• Upload digital files to include in the customization of those assets.
• Add stock imagery from Tweak.
• Download PDF, JPEG and PNG versions of those files.
Company may also provide access to and use of Tweak’s layout templates, photograph libraries and other content, in its discretion.
All of the foregoing, in addition to all other functionality offered, are referred to in these Terms as the “Services.” Tweak agrees to provide you with the particular Services to which you subscribe in accordance with the particular subscription plan that you select. You may change your subscription plan at any time, which change shall be effective immediately. Company currently offers the subscription plans listed on its fee schedule located on its pricing pages.
• The Services and Software, all improvements, enhancements and modifications, any software, applications, inventions or other technology developed in connection with the Services and all intellectual property rights related to all of the foregoing (except for content that you upload to the Services) are the exclusive property of Company and are protected by copyright, trademark, patent, international treaty and other applicable law. You may not use the Services for any purpose prohibited by or not explicitly allowed in these Terms. By uploading any content to the Services, you grant to Company a non-exclusive, worldwide, royalty-free right and license to reproduce, display and otherwise use such content solely as necessary and desirable to provide the Services to you and enable them to function properly for your use. You further grant Company the right to display your name and logo on Company’s advertising, website and marketing materials.
• Notwithstanding anything to the contrary in these Terms, Company has the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, data that is uploaded by Uploaders and Editors and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
2. RESTRICTIONS AND RESPONSIBILITIES
• You may not, directly or indirectly, and may not permit any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”) (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); or remove any proprietary notices or labels (iii) remove or export or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any applicable restrictions, laws or regulations (iv) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the Services. While you may use the Services to provide your services to your clients, you may not offer your clients use of the Services in any way that competes with the business of Company.
• You represent, covenant and warrant that you will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. You represent that you have read and understand the Policy. Although Company has no obligation to monitor your use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing and terminate your subscription with no refund to you.
• You shall be responsible for obtaining and maintaining any equipment and ancillary services and licenses needed to access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of your Equipment, account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent. You acknowledge and agree that these Terms do not grant you the right to use, or govern your use of, Adobe® InDesign®, which is separate software governed by a separate license agreement issued by Adobe®
• You may not sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute any Stock Media. You may not use any of the Stock Media as part of a trade-mark, design-mark, trade-name, business name, service mark or logo. You may not use any of the Stock Media any commercial, promotional, endorsement, advertising or merchandising use. You may not remove any notice of copyright, trade-mark or other proprietary right.
• PAYMENT OF FEES
• The Company’s current Fee (the “Fees”) schedule is available from www.tweak.com. Company reserves the right to change the Fees and applicable charges, to institute new charges and Fees, and to offer and cease offering discounts and promotional pricing. New charges and Fees shall be applicable immediately.
• TERM AND TERMINATION
• These Terms shall be effective for as long as you use the Services. You may terminate the Services and these Terms at any time, which termination shall become effective immediately, as applicable. Company reserves the right to modify its subscription offerings at any time.
• Upon any termination, Company may, but is not obligated to, delete your data. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, your representations, and indemnification, and limitations of liability.
• Free accounts will be terminated after 60 days of inactivity. Access to your uploaded assets – and the ability to download them will no longer be available. Company reserves the right to modify the length of time until termination upon inactivity at any time
• WARRANTY AND DISCLAIMER
• Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. The service is provided on an “as is” and “as available” basis. Use of the service is at your own risk. To the maximum extent permitted by applicable law, the service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
• DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION 5, COMPANY PROVIDES THE SERVICES “AS IS” AND “AS AVAILABLE,” AND ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT AND ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ARE HEREBY DISCLAIMED TO THE EXTENT ALLOWED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO OR INABILITY TO ACCESS THE SERVICES AND COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT ERROR OR INTERRUPTION. COMPANY DOES NOT REPRESENT OR WARRANT THAT SOFTWARE INCORPORATED INTO THE SERVICES WILL REMAIN AVAILABLE OR BE FREE OF OPEN SOURCE OR “COPYLEFT” LICENSES INTENDED TO REQUIRE USE OF OPEN SOURCE LICENSING MODELS BY SUBSEQUENT PROVIDERS OR OTHER RESTRICTIONS ON THE USE THEREOF. COMPANY MAKES NO WARRANTIES WITH REGARD TO INTELLECTUAL PROPERTY RIGHTS IN THIRD-PARTY MATERIALS. COMPANY SHALL BEAR NO RESPONSIBILITY, AND SHALL NOT BE LIABLE, FOR THE FUNCTIONING OR NONFUNCTIONING OF THIRD-PARTY MATERIALS.
• REPRESENTATIONS & WARRANTIES
• In addition to the other representations and warranties in these Terms, you represent and warrant that: (i) you have the full right and authority to enter into, execute and perform your obligations under these Terms; (ii) no pending or threatened claim or litigation known to you would have a material adverse impact on your ability to perform as required by these Terms; (iii) you will comply with the Policy and all reasonable direction from Company; (iv) in using the Services, you will comply with all applicable law and will not violate the contractual or other right of any third party; (v) all content and data you upload to the Services is either owned by you or you have all necessary licenses to use such content in connection with the Services, and you will not upload to the Services any content, or make and changes to content, that violates applicable law or the rights of any third party; and (vi) you possess all licenses and other rights necessary for you to use the software provided through the Service.
7.1 You agrees to indemnify and defend Company from and against any Liabilities, arising from or relating to: (i) the negligence or willful misconduct of yours, your employees and/or its agents; or (ii) the performance or non-performance of your obligations hereunder; or (iii) any alleged or actual breach of any provision of these Terms or any statement(s) of work, or order form(s) arising under the same, including representations made by you thereunder.
• LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, UNLESS PROHIBITED BY LAW, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OR TERMS AND CONDITIONS RELATED HERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY ERROR OR INTERRUPTION OF USE OF THE SERVICES OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.YOU AND COMPANY AGREE THAT, UNLESS PROHIBITED BY LAW, ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE ARISING HEREUNDER WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU ACT OR PROPOSE TO ACT IN A REPRESENTATIVE CAPACITY. YOU FURTHER AGREE THAT, UNLESS PROHIBITED BY LAW, NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY AND ALL PARTIES TO ANY SUCH PROCEEDING.
• DATA AND PRIVACY
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms are not assignable, transferable or sublicensable by you without Company’s prior written consent and any purported assignment or sublicense shall be null and void. Company may transfer and assign any of its rights and obligations under these Terms without consent. These Terms constitute the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Republic of Ireland without regard to its conflict of laws provisions.
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM AND AGREE TO BE BOUND BY THEM.