Toolsey is willing to license the Toolsey Website to you only on the condition that you accept all the terms contained in this EULA. By using the Toolsey Website, you acknowledge and agree that you have read and understand this EULA and accept all of its terms.
If you agree to this EULA on behalf of another person or legal entity including, without limitation, another business, you represent and warrant that you have the authority to bind that entity to this EULA and your agreement to this EULA will be treated as the agreement of the entity. In that event, “you” and “your” will refer and apply to that entity. If you do not accept this EULA in its entirety, then Toolsey is unwilling to license the Toolsey Website to you and you may not access or use the Toolsey Website. Any use of the Toolsey Website by you under these circumstances will be considered a violation of Intellectual property laws and may subject you to civil and/or criminal penalties.
1. Modification of These Terms
Toolsey reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If Toolsey materially modifies this EULA it will post the updated EULA in the “Info Menu” of the Toolsey Website. Toolsey will also update the “Last Updated Date” at the end of this Agreement. By continuing to use the Toolsey Website after Toolsey has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to close your Toolsey Website account. This Agreement will also govern any Website upgrades and/or updates provided by Toolsey that upgrade and/or supplement the Toolsey Website, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.
2. The Toolsey Website and Third Party Software
Toolsey provides a platform that allows third parties to customize the Toolsey Website (“Publishers”). The Toolsey Website may include database indexing and other features. Such installed search features are further detailed in section 3 below. In addition, registration on the Toolsey Website may enable Toolsey to access, use and collect a variety of information, both personal and non- personal, regarding your usage of the Toolsey Website, and information about your computer (additional information is further detailed in section 3 below).
The Publishers customization of the Toolsey Website may take the form of adding data, information, links, web pages, images, software and code, text, photos, audio or video sounds, and/or visual works and components to the Toolsey Website (collectively “Third Party Software”), and then distributing it to you in the form of (the “Toolsey Website”). Toolsey does not have control of and does not take any responsibility for anything a Publisher adds to the Toolsey Website, which may include without limitation, naming the Toolsey Website. Third Party Software is the responsibility of the Publishers and not Toolsey. Some Third Party Software and/or Toolsey Website may contain Cookies or other tracking mechanisms. As used herein”Cookie” means a small piece of information that is placed on your device’s Browser while you are viewing a website or using the Toolsey Website, the Toolsey Website and/or the Third Party Software. Some of the data stored in this storage space may include your personal information. Please review the policies of the Third Party’s and/or Publishers for information about their practices.
Third Party Software will have their own terms and conditions and privacy policies and we urge you to review them prior to using them as your use of such Third Party Software is subject to these terms and conditions and privacy policies. Third Party Software is not owned by Toolsey. Toolsey is not responsible for any Third Party Software and you acknowledge that Third Party Software may be modified or removed by its respective content owners at any time. You assume all responsibility and risk of use of any Third Party Software and Toolsey hereby disclaims any and all liability to you or any third party related thereto. Toolsey does not have any obligation to examine or scan Third Party Software, for any purpose, and is not responsible for the accuracy, completeness, appropriateness or legality of any Third Party Software. The fact that a Third Party Software is available via the Toolsey Website or otherwise is not an endorsement, authorization or representation of Toolsey’s affiliation with any third party, nor is it an endorsement of such Third Party Software and you hereby waive any legal or equitable rights or remedies you have or may have against Toolsey with respect thereto.
3. License to Software and Use
a. Conditioned upon your compliance with the terms and conditions of this EULA, Toolsey hereby grants to you a limited, reversible, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to the use of the Toolsey Website Toolsey reserves all rights in the Toolsey Website not expressly granted to you in this EULA.
b. With respect to any Third Party Software that may be incorporated with or into any Toolsey Website, you acknowledge and agree that your use of such Third Party Software shall also be subject to its respective usage and privacy terms.
4. License Restrictions
1. Except as expressly specified in this EULA, you may not: (a) copy or modify the Toolsey Website; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Toolsey Website
to any third party; or (c) use the Toolsey Website in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the Toolsey Website, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Toolsey and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the Toolsey Website provided in object code or any other Toolsey products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
2. Any Open Source Software that may be accompanying the Toolsey Website is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” mean open source software components provided with the Toolsey Website that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Toolsey Website. This EULA does not apply to any Open Source Software accompanying the Toolsey Website and Toolsey hereby disclaims any and all liability to you or any third party related thereto.
5. Updates; Additional Services; Tests
1. Further, you agree that by using the Toolsey Website you may periodically send technical data and related information to Toolsey to facilitate the provision of updates, product support and other services to you, if any, related to the Toolsey Website. Such information may include, but is not limited to, technical information or personal preferences about your computer or device (whether mobile device or other), and/or internet Browser and/or system. Additionally, you agree Toolsey may conduct A/B testing and change the look and feel of the Toolsey Website or add additional features in order to improve your experience with the Toolsey Website.
2. Your only recourse if you are unhappy with any of the modifications to the Toolsey Website is to cancel your Toolsey account.
6. Proprietary Rights
1. The Toolsey Website is licensed, not sold to you. You acknowledge and understand that Toolsey owns all right, title and interest in and to the Software, including without limitation all intellectual property rights therein. The Toolsey Website is protected by United States (and other countries) copyright, trademark, other statutory and common law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Toolsey Website as delivered to you.
2. All rights in the Third Party Software, including all ownership rights are reserved and remain with such third parties. You agree that such third parties may enforce their rights against you directly in their own name. Toolsey is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your use of any Third Party Software.
7. Privacy and Legal Rights
2. If search is available in your Toolsey Website, please note that Toolsey collects search query information. Such search query information could be used to serve relevant ads to you and/or to monitor the performance of the search services.
3. Toolsey prohibits the violation of a user’s privacy rights and the distribution of materials that are illegal, infringing or may be deemed offensive by Toolsey, in its sole discretion, as part of this Toolsey EULA. If you believe that your legal or privacy right has been violated while using the Toolsey Website or Third Party Software, Toolsey encourages you to report such matters to Toolsey at your earliest convenience at [email protected]. Toolsey will, at its discretion, examine your complaint and take commercially reasonable efforts to attempt to resolve the issue as part of Toolsey’s commitment to providing a positive user experience.
8. Your Obligations
1. You hereby acknowledge and agree to only use the Toolsey Website as permitted in this EULA.
2. You agree to comply with all applicable laws, rules and regulations when using the Toolsey Website. You will not use the Toolsey Website to infringe anyone’s rights, including, without limitation, any intellectual property rights of any person or entity.
3. You agree that you are solely responsible for (and that Toolsey has no responsibility to you or to any third party) your use of the Toolsey Website, any breach of your obligations under the EULA, and for the consequences (including any loss or damage which Toolsey may suffer) of any such breach.
9. No Obligation
Toolsey is not obligated to maintain or support the Toolsey Website, or to provide you with updates, fixes, or services related thereto. You understand that during and/or by using the Toolsey Website, you may encounter Third Party Software that may be deemed offensive, indecent or objectionable. Nevertheless, you agree to use the Toolsey Website at your own risk and that Toolsey shall not have any liability to you with respect to such content.
10. Government Users
Any use, duplication, or disclosure of the Toolsey Website by the U.S. government is subject to the restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202- 3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Manufacturer is Toolsey.com, LLC.
11. Export Laws
1. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Toolsey Website nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. Furthermore, you agree you will not export nor re-export the Toolsey Website nor any technical data related thereto nor any direct product thereof to any US embargoed country.
2. By using the Toolsey Website, you further represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
12. Disclaimer of Warranties
In addition to the limitations of Toolsey’s liability expressly contained in this Agreement, Toolsey further disclaims any warranty related to acknowledge and agree that you assume all the responsibility and risk for your use of the Software and the results and performance thereof and your use of any Third Party Software. THE TOOLSEY WEBSITE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. TOOLSEY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TOOLSEY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. TOOLSEY DOES NOT REPRESENT OR WARRANT THAT: (I) THE TOOLSEY WEBSITE OR ANY THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE TOOLSEY WEBSITE OR ANY THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED; OR (III) THE ACCURACY,
TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE TOOLSEY WEBSITE, ANY THIRD PARTY SOFTWARE AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE TOOLSEY WEBSITE OR ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION, WEATHER REPORTS, FINANCIAL DATA, ANALYSIS, MARKET INFORMATION AND NEWS, MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND TOOLSEY AND TOOLSEY’S THIRD PARTY LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. TOOLSEY MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE TOOLSEY WEBSITE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE TOOLSEY WEBSITE OR THE THIRD PARTY SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE TOOLSEY WEBSITE IS TO UNINSTALL AND CEASE USE OF THE TOOLSEY WEBSITE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
13. Limitation of Liability
IN NO EVENT WILL TOOLSEY, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY, THE “TOOLSEY GROUP”) AND TOOLSEY’S THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE TOOLSEY WEBSITE OR ANY THIRD PARTY WEBSITE UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE TOOLSEY GROUP OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL TOOLSEY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS EULA, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE TOOLSEY WEBSITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
To the maximum extent permitted by law, You agree to defend, indemnify and hold the Toolsey harmless from and against any and all claims, suites, losses, liability, costs or expenses (including but not limited to reasonable attorneys fees) arising from or incurred as a result of your use of the Toolsey Website, including your use of the Toolsey Website, or your violation of this EULA.
15. Term and Termination
Your license to use the Toolsey Website under this EULA shall continue until it is terminated by either party. You may terminate this EULA at any time, by discontinuing the use of all or any of the Toolsey Website and closing your Toolsey account This EULA and the license granted to you under this EULA will terminate automatically if you breach any term of this EULA. Sections 2, 3, 4, 6 through 12, 14 and 16 shall survive the termination of this EULA.
a. This EULA and all the policies referenced herein constitute the entire agreement between Toolsey and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of Toolsey.
b. The section titles in this EULA are provided solely for convenience and have no legal or contractual significance.
c. This EULA shall be governed by and interpreted under the laws of the State of Indiana, without regard to its conflicts of laws provisions. All actions relating to this EULA and the Toolsey Website shall be brought in the competent court in the State of Indiana. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Notwithstanding this, you agree that Toolsey will still be allowed to apply for injunctive remedies (or an equivalent type of unilateral, non-monetary urgent legal relief) in any jurisdiction.
d. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
e. If for any reason a court of competent jurisdiction finds any provision of his EULA or portion thereof, to be unenforceable, that provision of this EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. Toolsey reserves the right, at our discretion, to update or revise this EULA.
f. Except as required by law, the controlling language of this EULA is English. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail.
g. You may not assign your rights under this EULA to any party without Toolsey’s consent.
h. If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this EULA and shall not affect the validity and enforceability of any remaining provisions.
i. Nothing in this EULA will be construed as creating a joint venture, partnership, employment or agency relationship between you and Toolsey, and you do not have any authority to create any obligation or make any representation on Toolsey’s behalf.
j. If you have any questions about the Website, please email your question to [email protected].
17. Third Party Beneficiaries
18. Questions, Comments, and Contact Information
If you have any questions, complaints and/or claims, you may contact Toolsey at: 12175 Visionary Way Suite 118, Fishers, IN 46038 E-mail: [email protected].