Mosketch – License Agreement
READ THIS LICENSE AGREEMENT (HEREAFTER AGREEMENT) CAREFULLY BEFORE USING MOSKETCH AND ALL ITS RELATED SERVICES (HEREAFTER MOSKETCH). MOSKETCH IS CREATED AND OWNED BY MOKA STUDIO SARL (HEREAFTER MOKA STUDIO). BY USING MOSKETCH, YOU ACKNOWLEDGE THAT YOU HAVE FULLY READ AND UNDERSTOOD THIS AGREEMENT, THAT YOU HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT AND THAT YOU HAVE THE LEGAL RIGHT AND CAPACITY TO ENTER INTO THIS AGREEMENT. BY USING MOSKETCH, YOU ALSO AGREE TO BE BOUND BY THIS AGREEMENT, ALL APPLICABLE LAWS AND REGULATIONS, AND AGREE THAT YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ANY APPLICABLE LOCAL LAWS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU ARE PROHIBITED FROM USING MOSKETCH.
The terms in this Agreement compose the complete Agreement between you and Moka Studio with respect to Mosketch. They supersede any prior or contemporaneous oral, written or electronic agreements, communications or proposals between you and Moka Studio with respect to Mosketch. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be adjusted rather than voided, if possible, in order to achieve the intent of this Agreement to the fullest extent possible. In any event, all other provisions of this Agreement shall remain valid and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Definitions
A User is any individual using Mosketch.
The Content is any material present in Mosketch. It may be for example (but without limitations) a text on a web page, an image, a logo, a blog post, a forum message, a video, an animation, an audio clip, a file, a written forum comment, data, text, an illustration, a photograph, software, a script, graphics or a work of authorship.
User-Content is any Content created by a specific User with Mosketch or any Content uploaded by him to Mosketch, in relation to such User.
Use of Mosketch
Subject to compliance with the terms of this Agreement, the User is granted access to and use of Mosketch. Any violation may result in termination of this Agreement.
Rules of Conduct
By using Mosketch, you acknowledge that you shall respect this Agreement and that you will not (nor help any third party) take any action that could harm Moka Studio, its affiliates, Mosketch, their respective directors, officers, employees, shareholders, partners and agents or its Users in any manner, including their reputation. In particular (but without limitations), you shall not:
· modify, limit or interfere with Mosketch's proper behavior;
· bypass or interfere with any security and licensing systems on Mosketch;
· access source code, algorithms, ideas or secrets of any part of Mosketch by any direct or indirect means such as (but not limited to) decompilation, disassembling or reverse engineering;
· copy, share or sell Mosketch by any direct or indirect means; or
· use Mosketch in a way that is unlawful, threatening, abusive, defamatory, vulgar, lewd, hateful or invasive of another's privacy.
User Account
You will be asked to sign in for a User account to use Mosketch. You shall provide information that is accurate and complete and that respects the Rules of Conduct. Moka Studio reserves the right to refuse the creation of, ban or delete any User account at its sole discretion. You shall take all possible measures to keep your account safe and protect all confidential information related to your account. You shall notify Moka Studio immediately of any unauthorized use of your account or other breach of security. You agree to endorse all the responsibility for all activities occurring on your account.
Intellectual Property
You hereby acknowledge that the Content and Mosketch, both provided by Moka Studio, its partners and its Users, is protected by copyrights, patents, service marks, trademarks, trade secrets, know-how or other proprietary rights and laws.
Moka Studio is and shall remain at all times the sole owner of Mosketch and nothing in this Agreement shall be construed as transferring or allowing the transfer any rights of ownership over Mosketch to any other person.
You acknowledge that Mosketch includes third party software as listed under Appendix 1, which are obtained under a license from such parties. All third party licensors retain all right, title and interest in and to such third party software and all copies thereof, including all copyright and other intellectual property rights. These third party software are governed by their own terms, which may include open source or free software licenses. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms of any such third party software.
You agree to abide by all copyright notices, information, and restrictions contained in any Content accessed through Mosketch. You agree not to sell, license, distribute, copy, rent, modify, reproduce, transmit, publicly perform and display, publish, adapt, edit or create derivative works from Contents (i) without the express prior written consent of the respective owners or other valid rights, and (ii) in any way that violates any third party rights.
Moka Studio does not claim ownership over User-Content. However, Moka Studio shall be allowed to use any User-Content submitted by the User for the purposes of such submission, such as debugging.
If you have suspicion whether a certain use of Content abides by this Agreement, you shall immediately seek confirmation from Moka Studio by sending an email at contact@mokastudio.com. In any case, you shall immediately cease using any Content that violates any copyrights or intellectual property rights in case of notification by Moka Studio.
Mosketch License Agreement Modifications
Moka Studio may revise this Agreement for Mosketch at any time without notice. You are responsible from reviewing this Agreement periodically. By continuing using Mosketch after a revision, you agree to be bound by the revised version of this Agreement.
Trial-Period
You are offered a 30-day trial license to install and use Mosketch for evaluation purposes so that you may determine whether it meets your requirements and whether you desire to continue using Mosketch. Upon expiry of the trial license, your copy of Mosketch will be de-activated and you must upgrade your license key for further use of Mosketch.
Payment and Refund
In consideration of the license granted in this Agreement, User shall pay Moka Studio a fee, via Credit-Card, PayPal or any other mean which Moka Studio may deem adequate. Failure to perform payment shall constitute a material breach of this Agreement.
Given that you are offered a free trial-period, all license purchases are final and non-refundable. Upon purchase, you warrant that Mosketch is adequate to your needs.
If you purchase a Mosketch license, your copy of Mosketch will be fully activated following the processing of your license fee payment. To the extent that European Consumer Protection Regulations apply, you have the right to withdraw from your purchase within 14 calendar days commencing on the purchase of the license. However, please note that you will lose any such right of withdrawal if and once your copy of Mosketch is activated. Should you wish to exercise your withdrawal right, please inform us (contact@mokastudio.com) and we shall promptly reimburse your payment to you.
Mosketch Maintenance, Modifications and Errata
The Content appearing in Mosketch could include technical, typographical, or photographic errors. Moka Studio does not warrant that any of the Content in Mosketch is accurate, complete, or current. Moka Studio may make changes to Mosketch’s Content at any time without notice. Moka Studio does not, however, make any commitment to update the Content.
Moka Studio reserves the right to add, modify, replace or delete any Content, feature or service in Mosketch without prior notification.
Moka Studio may provide User, from time to time, with Upgrades, Updates or Fixes, as detailed below and according to its sole discretion. User hereby warrants to keep Mosketch up-to-date and install all relevant updates and fixes. User may, at his sole discretion, purchase Upgrades, according to the rates set by Moka Studio. Moka Studio shall provide any Update or Fix free of charge; however, nothing in this Agreement shall require Mosketch to provide Updates or Fixes.
1. Upgrades: for the purpose of this Agreement, an Upgrade shall be a material amendment in Mosketch, which contains new features and/or major performance improvements and shall be marked as a new version number. For example, should User purchase Mosketch under version 1.X.X, an upgrade shall commence under number 2.0.0.
2. Updates: for the purpose of this Agreement, an update shall be a minor amendment in Mosketch, which may contain new features or minor improvements and shall be marked as a new sub-version number. For example, should User purchase Mosketch under version 1.1.X, an update shall commence under number 1.2.0.
3. Fix: for the purpose of this Agreement, a fix shall be a minor amendment in Mosketch, intended to remove bugs or alter minor features which impair Mosketch's functionality. A fix shall be marked as a new sub-sub-version number. For example, should User purchase Mosketch under version 1.1.1, a fix shall commence under number 1.1.2.
Mosketch is provided under an as-is basis and without any support, updates or maintenance. Nothing in this Agreement shall require Moka Studio to provide User with support or fixes to any bug, failure, mis-performance or other defect in Mosketch.
User shall provide Moka Studio of details regarding any bug, defect or failure in Mosketch promptly and with no delay from such event; User shall comply with Mosketch's request for information regarding bugs, defects or failures, provide Moka Studio with information, screenshots and try to reproduce such bugs, defects or failures.
User may request additional features in Mosketch, provided that User waives any claim or right in such feature should feature be developed by Moka Studio.
Links and Third Party Sites
Mosketch has not reviewed the third party sites its Content may link to. Moka Studio is not responsible for the contents of any such third party sites. The inclusion of any link in Mosketch does not imply endorsement by Moka Studio of these third party sites. Use of any such third party sites is at the User's own risk and subject to the terms of such third party sites. You agree that Moka Studio shall not be responsible or liable for any direct or indirect damages or loss consecutive to the access of any such third party sites.
Security
Due to technical difficulties with the Internet, Internet software or transmission problems could produce inaccurate or incomplete copies of information contained in Mosketch. Computer viruses or other destructive programs may also be inadvertently downloaded from Mosketch Content.
Moka Studio shall not be responsible or liable for any software, computer viruses or other destructive, harmful or disruptive files or programs that may infect or otherwise impact your use of your computer equipment or other property on account of your use of Mosketch. Moka Studio recommends that you install appropriate anti-virus or other protective software.
Termination
This Agreement shall automatically terminate if you violate any of the terms in this Agreement and may be terminated by Moka Studio at any time without notice. If you wish to terminate this Agreement, you can do so by sending an email to contact@mokastudio.com containing all information to identify your User account in Mosketch. Upon termination of this Agreement, you must destroy any Mosketch Content in your possession, with the exception of your User-Content. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, perpetual license provisions, warranty disclaimers, indemnity and limitations of liability.
Indemnity
You agree to indemnify, defend and hold harmless Moka Studio and its affiliates, their respective directors, officers, employees, shareholders, partners and agents (collectively, the "Moka Studio Parties") from and against any and all claims, liability, losses, costs and expenses (including lawyers’ fees on a solicitor and client basis) incurred by any Moka Studio Party in connection with: (i) any use or alleged use of Mosketch with your User account by any person, whether or not authorized by you; (ii) any communication made with your User account; (iii) User-Content you created or submitted to Mosketch; or (iii) any breach by you of this Agreement. Moka Studio reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Moka Studio's defense of such claim.
Limitation of Liability
IN NO EVENT SHALL MOKA STUDIO OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR PROFIT, OR DUE TO BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE MOSKETCH, EVEN IF MOKA STUDIO OR A MOKA STUDIO AUTHORIZED REPRESENTATIVE HAS BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGE. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR THE USE OR EXPLOITATION OF ANY OR ALL PART OF MOSKETCH OR ITS CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO TEN (10.- CHF) SWISS FRANCS.
Governing Law and Jurisdiction
THIS AGREEMENT shall BE CONSTRUED UNDER AND governed by Swiss law without regard to its conflict of law provisions.
ANY DISPUTE FROM OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE subject to the exclusive jurisdiction of the COMPETENT courts OF MARTIGNY (VALAIS, SWITZERLAND) WITH OPPORTUNITY OF APPEAL TO THE SWISS SUPREME COURT.
Warranty Disclaimer
Moka Studio has no special relationship with or fiduciary duty to you. You acknowledge that Moka Studio has no control over, and no duty to take any action regarding: (i) which Users use Mosketch, (ii) what Content you access via Mosketch, (iii) what effects the Content may have on you, (iv) how you may interpret or use the Content, (v) or what actions you may take as a result of having been exposed to the Content. You release Moka Studio from all liability and responsibility for you having acquired or not acquired Content through Mosketch. Moka Studio makes no representations concerning Content contained in or accessed through Mosketch, and you acknowledge that Moka Studio will not be responsible for the accuracy, copyright, compliance, legality or decency of Content contained in or accessed through Mosketch.
You acknowledge that Moka Studio cannot be held responsible for any actions of other Users or Contents.
Moka Studio cannot guarantee continuous or secure access to Mosketch, and operation of Mosketch may be interfered with by numerous factors outside of Moka Studio's control. MOSKETCH (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) IS PROVIDED "AS IS" AND "AS AVAILABLE" AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. MOKA STUDIO, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) MOSKETCH WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH MOSKETCH IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING MOSKETCH WILL MEET YOUR REQUIREMENTS.
YOUR USE OF MOSKETCH IS SOLELY AT YOUR OWN RISK.
MISCELLANEOUS
Mosketch is available only to individuals who are at least 13 years old. You represent and warrant that if you are an individual, you are at least 13 years old, you are of legal age to agree to this Agreement or you have your parents' permission to do so, and that all registration information you submit is accurate and truthful. Moka Studio may, in its sole discretion, refuse use of Mosketch to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to use Mosketch is revoked in such jurisdictions.
Moka Studio shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Moka Studio's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). The Agreement is personal to you, and is not assignable, transferable or sublicensable by you except with Moka Studio's prior written consent. Moka Studio may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
Privacy
Your privacy is very important to us. Accordingly, we have developed this policy in order for you to understand how we collect, use, communicate and disclose and make use of personal information. The following outlines our privacy policy.
· Before or at the time of collecting personal information, we will identify the purposes for which information is being collected.
· We will collect and use of personal information solely with the objective of fulfilling those purposes specified by us. Further, we may also use your personal information for related purposes, such as to communicate with you, to run certain surveys or to recommend to you certain services which you may find of interest. You may at any time choose to refuse future use of your personal data for such purposes (opting-out) by sending an email to the below contact details or, if available, by clicking on the link at the bottom of our communication.
· We will not share your personal information with any third party unless required to do so by law, or in case of transfer of our activities.
· We will only retain personal information as long and as necessary for the fulfillment of those purposes. If you choose not to give us certain personal information, we may be unable to provide you with part or all of our services.
· We will collect personal information by lawful means and, where appropriate, with the knowledge or consent of the individual concerned.
· We will protect personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.
We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained. For inquiries regarding privacy issues, please contact us at contact@mokastudio.com.
MOKA STUDIO AND MOSKETCH MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED THROUGH MOSKETCH OR ANY WEBSITE LINKED TO MOSKETCH.
Moka Studio will not be liable for the privacy of the information, email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Moka Studio's infrastructure, transmitted over networks accessed by Mosketch, or otherwise connected with your use of Mosketch.
Contact
You may contact Moka Studio at the following address:
Moka Studio SARL
Centre du parc
Rue Marconi, 19
1920 Martigny
SWITZERLAND
contact@mokastudio.com
First published on September, 7th 2015
Edited on July, 4th 2016
Edited on August, 10th 2016
APPENDIX 1 – Licenses
This software contains Autodesk® FBX® code developed by Autodesk, Inc. Copyright 2013 Autodesk, Inc. All rights, reserved. Such code is provided “as is” and Autodesk, Inc. disclaims any and all warranties, whether express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose or non- infringement of third party rights. In no event shall Autodesk, Inc. be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of such code.
This software uses the FreeImage open source image library. See http://freeimage.sourceforge.net for details. FreeImage is used under the FIPL, version 1.0.
This software uses Qt. See http://www.qt.io for details. Qt is used under the LGPL 2.1 & 3.0.
This software uses ANTLR3. See http://www.antlr3.org for details. ANTLR3 is used under the ANTLR 3 license.
This software uses FreeType. See https://www.freetype.org for details. FreeType is used under the FreeType license.
This software uses libpng. See http://www.libpng.org for details. libpng is used under the libpng license.
This software uses Eigen. See http://eigen.tuxfamily.org for details. Eigen is used under the MPL2 license.