TERMS OF SERVICE
2. Tutorialize may make changes to the Agreement, at its sole discretion, from time to time by publishing them on the Tutorialize Site, and without providing any special notice. Your continued use of the Software and Service indicates Your acceptance of any such updated Agreement terms. You may be asked to click to accept updated terms, and if so, then Your failure or refusal to do so will allow Tutorialize to terminate the Agreement and the licenses granted hereunder and to stop providing the Service to you. If You wish to cancel any Service due to a material change in the Agreement, You may do so by notifying Tutorialize no later than 10 business days after a change to the Agreement was published on the Tutorialize Site, and such notice must identify the change and the reason for Your termination.
3. By completing the registration process and/or downloading the Editing Tool and/or receiving the Code and/or embedding the Code in Your Site and/or using the Service, You are stating that You are at least 14 years of age, You are legally eligible to do so and that You agree to be bound by all of the terms and conditions contained in the Agreement. The Software is licensed to You and the Service is offered to you, conditioned on Your acceptance, without modification of the terms, conditions, and notices contained in the Agreement. Definitions
4. These capitalized terms will have the following meanings: o “Account” refers to an account opened by You with Tutorialize by registering for the Service on the Tutorialize Site. o “Code” means proprietary Tutorialize snippet code provided to You by Tutorialize to be embedded solely on a Site, for the purpose of allowing Tutorialize to provide the Service by running tutorials on a Site. o “Content” means content relating to a Site developed by You using the Editing Tool to be displayed in tutorials on the Site. o “Documentation” means any accompanying proprietary documentation made available to You by Tutorialize for use with Software, including any documentation available online or otherwise. o “Editing Tool” means a software tool that may be downloaded free of charge from the Tutorialize Site and with which You may create Tutorials for display on Site as part of the Service. o “Run” is the unit of measurement for usage of a Tutorial on a Site. Each time an end-user of a Site accesses a Tutorial, one Run will be registered by Tutorialize. o “Servers” means any servers upon which Content is stored. o “Site” means a website operated by You on which one or more Tutorials are displayed using the Tutorialize service. o “Software” means the Editing Tool, the Code and other related software proprietary to Tutorialize and any all upgrades, updates and fixes thereto provided. o “Tutorial" means each Tutorial developed using the Editing Tool, containing Content and made visible on a Site by the Service. There may be multiple Tutorial embedded in a single Site.
Tutorialize Site License
5. Tutorialize grants you a limited license to access and make personal use of the Tutorialize Site and to download the Editing Tool from it, but otherwise not to download (other than page caching) or modify it, or any portion of it, except with the express written consent of Tutorialize. This license does not include any resale or commercial use of the Tutorialize Site or its contents; any derivative use of the Tutorialize Site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. The Tutorialize Site or any portion of it may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Tutorialize. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Tutorialize without express written consent. You may not use any meta tags or any other “hidden text” utilizing Tutorialize’s name or trademarks without the express written consent of Tutorialize. Any unauthorized use terminates the permission or license granted by Tutorialize. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Tutorialize.com so long as the link does not portray Tutorialize, or its Software or Services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any Tutorialize logo or other proprietary graphic or trademark as part of the link without Tutorialize’s express written permission.
6. To register for the Service, You must complete the registration process by providing Tutorialize with current, complete and accurate information as prompted by the registration form on the Tutorialize Site, including Your e-mail address (username) and password. You shall protect Your passwords and take full responsibility for Your own, and third party, use of Your Accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify Tutorialize immediately upon learning of any unauthorized use of Your Account or any other breach of security. From time to time, Tutorialize’s support staff may log in to the Account under Your password in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access. Tutorialize can refuse registration of, or cancel, any account in its sole discretion, at any time.
7. You may not assign Your Account, and any such purported assignment by You will be null and void; provided, however, that You may assign Your Account to Your successor in interest in connection with the sale of Your business as a going concern or in connection with the sale of all, or substantially all, of Your assets.
8. In order to subscribe to the Tutorialize Service, You may be required to provide Tutorialize with billing and account information (“Billing Information”) for a credit card, payment card or another payment system for which You are authorized to approve charges (each, a “Payment Source”) to allow Tutorialize to collect payment from You for Your use of the Tutorialize Service. You must provide Tutorialize with true, accurate, current and complete Billing Information and maintain and promptly update Your Billing Information to keep it true, accurate, current and complete.
9. Unless other payment arrangements have been made in advance and confirmed by Tutorialize, You authorize Tutorialize to automatically and immediately bill Your Payment Source when charges for Your use of the Service are due, without any further action on Your part or other prior notice on the part of Tutorialize. You assume full responsibility for such charges, even if such charges are declined or not paid by Your Payment Source.
10. If Your Payment Source is invalid, if charges billed to Your Payment Source are declined or not paid or if You fail to pay charges applicable to Your use of the Service when due, Your Account may be suspended or cancelled, at Tutorialize’s discretion. If Your Account is suspended or cancelled, Tutorialize may, but is not obligated to, maintain Your Account and/or related Content and information.
11. You are solely responsible for any and all taxes, levies, charges and fees incurred or that may be payable to any taxing authority in connection with the transactions hereunder, other than any income tax incurred by Tutorialize. All fees stated for use of the Service are net of any applicable taxes. Unless stated to the contrary, all charges for the Service are non-refundable, even if Your use of the Service is cancelled before the end of Your current billing period. Unless stated to the contrary, all currency references in relation to the Service are in U.S. dollars.
12. In addition to any other remedies available to Tutorialize, You will pay a late fee of two percent (2%) per month (or the maximum amount permitted by applicable law, whichever is higher) for any late payments hereunder.
13. To comply with applicable laws and lawful governmental requests, to protect Tutorialize’s systems, or to ensure the integrity and operation of Tutorialize’s business and systems, Tutorialize may access, store and/or disclose any information which Tutorialize considers necessary or appropriate, including, without limitation, user information, IP address and traffic information. Tutorialize also reserves the right to report any activity that it suspects violates any law, rule or regulation to appropriate law enforcement officials, regulators or other appropriate third parties.
14. The Software, Documentation, local computer files installed or utilized by the relevant installer application and Tutorialize Marks (defined below) are owned by Tutorialize, or Tutorialize’s licensors and are licensed to You on a personal, limited, revocable, worldwide (except as limited below), non-exclusive, non-sublicenseable and non-assignable basis on the terms and conditions set forth herein. All rights not expressly granted to You are reserved by Tutorialize or their respective owners. Under this license, You may install and personally use the Editing Tool and Code and any updates provided by Tutorialize (in its sole discretion) in any form on a personal computer owned or controlled by You and you may display Tutorialize Marks provided with the Editing Tool or the Code, in the manner determined solely by Tutorialize. Your license to the Software under this Agreement continues until it is terminated by either party.
15. This Software license terminates automatically if You violate any term of the license contained herein, Tutorialize publicly posts a written notice of termination on the Tutorialize Site, or Tutorialize sends a written notice of termination to you.
16. The above license does not allow You to, and You may not: • decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works or improvements from the Software or any portion thereof. • incorporate the Software into any computer chip or the firmware of a computing device manufactured by or for you. • use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement. • use the Software in respect of any application or Site where human life or property may be at stake. • use or export the Software in violation of any laws or regulations applicable to You or Tutorialize. • sell, lease, loan, distribute, transfer, or sublicense the Software or access thereto.
17. “Tutorialize”, “MakeTutorial” and other marks, trade names, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and/or unregistered trademarks, service marks and trade dress of Tutorialize (the “Tutorialize Marks”) are the property of their respective owners. Without Tutorialize’s prior written authorization, You agree not to display or use in any manner the Tutorialize Marks; however, a Publisher may write about its use of the Service at any time without such authorization, so long as Publisher sends the blog post or the content it has written to Tutorialize prior to or concurrent with publishing thereof.
18. Tutorialize may elect to provide You with customer support and/or Software upgrades, enhancements, or modifications for the Software (collectively, “Support”), in its sole discretion, and may terminate such Support at any time without notice to you. Tutorialize may change, suspend, or discontinue any aspect of the Software at any time, including the availability of any Software feature, database, or content. Tutorialize may also impose limits on certain features and Services or restrict Your access to parts or all of the Software or the Tutorialize Site without notice or liability.
Content Creation and License
19. The Editing Tool allows You to create Content, which will be stored on the Servers and displayed on Sites as part of the Tutorials. As long as the Content is subject to applicable copyright law, such Content shall remain at all times, and to the extent permitted by law, Your sole and exclusive property. You understand and agree that You are solely responsible for Your Content and the consequences of posting or publishing such material. You represent and warrant that You have (and will continue to have) all necessary licenses, rights, consents, and permissions which are required to use and to enable Tutorialize to use Your Content. You agree that You will not post or upload any Content which is unlawful for You to possess, post or upload, or which it would be unlawful for Tutorialize to use or possess in connection with the Service. Tutorialize explicitly reserves the right to remove the Content without a prior notice, at its sole discretion.
20. When You upload, post or disseminate Content through the Service, You grant Tutorialize an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sub-licensable and worldwide license, to use, reproduce, distribute, prepare derivative works of, display, make available to the public and perform that Content on Sites.
21. You hereby irrevocably release and forever discharge Tutorialize and its affiliates, subsidiaries, resellers and agents (together, the “Released Parties”) from any and all actions, causes of actions, claims, damages, liabilities and demands, whether absolute or contingent and of any nature whatsoever, which You now have or hereafter can, shall or may have against the Released Parties or their respecting successors and assigns with respect to the Content, including without limitation in respect of how the Released Parties, directly or indirectly, use the Content.
22. You hereby grant Tutorialize a limited, non-exclusive, fully paid-up, royalty free, worldwide right to use Your registered and unregistered trademarks, service marks, trade dress, graphics or logos (“Publisher Marks”) in any of the following: the Content, on Tutorialize’s Site, any Tutorialize blog or newsletter; on any business development, commercial sales materials, or press releases; as any part of the Service; or in any other reasonable manner that a publisher might expect Tutorialize to use its Publisher Marks.
23. Tutorialize has the right, but not the obligation, to remove or block Content from the Service that it determines in its sole discretion to be in violation of these Terms of Service, to be unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable, that violates any party’s intellectual property or that is detrimental to the quality or intended spirit of the Tutorialize Service. Tutorialize also has the right, but not the obligation, to limit or revoke the use privileges of the account of anyone who posts such Content or engages in such behavior.
24. The Service facilitates the display on your behalf of Tutorials containing Content on the Sites on which the Tutorials were prepared by You using the Editing Tool.
25. The provision of the Service may be made available in free or paid formats. Not all of the features and functionalities of the Service may be available in each format. The features and functionality of each format may be changed from time to time at Tutorialize’s discretion.
26. Service related fees will usually based on the number of Runs on each Site per month and other features that may be acquired by You (which may include, but will not be limited to support, SSL language features) or otherwise as may be described from time to time on the Tutorialize Site.
27. Tutorialize does not, and is not obligated in any way to assure that Tutorials will work without any problems or that the inclusion of Tutorials on a Site will not impact the performance of the Site, or that they will not cause problems to the use of the Site which may cause dissatisfaction by any end user or Yourself.
28. Tutorialize, in its sole discretion and at any time, may discontinue providing the Service, or any part thereof, with or without notice. Any termination of Your access to the Service under any provision of these Terms of Service may be effected without prior notice. Tutorialize may immediately deactivate or delete Your Account, as applicable, and all related information and Content. Tutorialize will not be liable to You or any third party for any termination of Your access to the Service.
29. You hereby represent, warrant, undertake and confirm in favor of Tutorialize that You own the Site and that You have full authority: (i) to create Content to be displayed as Tutorials on the Site; and (ii) to engage Tutorialize to provide the Service to you in relation to the Site. 30. You hereby represent, warrant, undertake and confirm in favor of Tutorialize that: (i) the Service is provided on Your behalf by Tutorialize to Your end-users of the Site; (ii) You have engaged Tutorialize to display Tutorials to end-users of the Site; (iii) You have obtained the end-users’ consent to Tutorialize collecting certain end-user information for purposes of Tutorialize’s provision of the Service; and (iv) you shall indemnify and hold Tutorialize its affiliates and their respective officers, directors, shareholders, employees, agents and contractors harmless from any claim or demand, including reasonable attorneys’ fees, made by any end-user accessing the Service on the Site.
Limitation of Liability; Indemnity
31. As a condition of use of the Software and the Service, You promise not to use the Software or the Service for any purpose that is unlawful or prohibited by the Agreement or by applicable law, or any other purpose not reasonably intended by Tutorialize. By way of example, and not as a limitation, You agree not to use the Software or Service: to abuse, harass, threaten, impersonate or intimidate any third parties; in any manner that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party; for any illegal or unauthorized purpose; to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Tutorialize user or any other third party. You agree to comply with all local laws regarding online conduct and acceptable use and content.
32. USE OF THE SOFTWARE AND THE SERVICE IS AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, THE SITE, END-USERS OF THE SITE OR SERVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF SOFTWARE OR THE SERVICE. THE SOFTWARE AND SERVICE ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED IN RELATION TO THEM. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, Tutorialize AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, Tutorialize AND ITS AFFILIATES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE DOCUMENTATION. Tutorialize DOES NOT WARRANT THAT THE SOFTWARE OR SERVICE WILL BE AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, WILL BE SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THEY ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS THAT MAY IMPACT THE OPERATION OR FUNCTIONALITY OF THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Tutorialize SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
33. NEITHER Tutorialize NOR ITS AFFILIATES WILL BE LIABLE, UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, Tutorialize’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO Tutorialize IN THE 3 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (ii) FIVE HUNDRED DOLLARS ($500.00).
34. You agree to indemnify and hold Tutorialize its affiliates and their respective officers, directors, shareholders, employees, agents and contractors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party in connection with or arising out of Your use of the Tutorialize Software or Service (or that of any third party using Your credentials), your violation of any terms or conditions of the Agreement, Your violation of applicable laws, or Your violation of any rights, including intellectual property rights, of another person or entity.
35. The Agreement will be interpreted according to the laws of the State of New York, without regard to its conflicts of law’s provisions. Any disputes, actions, claims or causes of action arising out of or in connection with this license agreement or the Service will be subject to the exclusive jurisdiction of the state municipal courts located in New York, USA. The failure of Tutorialize to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Upon expiration or termination of the Agreement for any reason, You shall promptly discontinue use of the Service, and delete the Software from wherever it was installed. The provisions of the Agreement addressing restrictions on use, disclaimers of representations and warranties, indemnity obligations, intellectual property, limitation on liability, and governing law shall survive the termination or expiration of the Agreement, for whatever reason.
36. Sections 3, 4, 7 through 13, 21, 22 and 27 through 35 will survive any termination of this Agreement.