Before using this software, you must read and agree to these license terms and conditions. If you do not agree with any of the provisions you must not accept this agreement.
eBay Inc. ("eBay") hereby grants you the right to use the software selected by you subject to these terms and conditions ("Terms and Conditions") and the terms and conditions of the eBay User Agreement posted on the eBay web site located at www.eBay.com ("eBay Site"). You agree that you will use the software selected by you only in compliance with all applicable laws, including but not limited to copyright and other intellectual property laws and the restrictions as described below, if applicable. You may not copy, distribute, sublicense, rent, lease or transfer the software. Your right to use the software selected by you will terminate immediately if you violate any provision of these Terms and Conditions or any provision of the eBay User Agreement. Upon termination, you may no longer use the software selected by you.
If you use the Blackthorne software, you agree that you will only install and use the software to list under up to 5 userids, provided that you own all userids.
You acknowledge and agree that eBay owns all right, title and interest in and to the software, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trademark law, trade secret law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, nor or hereafter in force and effect worldwide. You agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the software.
By using the software you agree to pay all subscription fees, if applicable, owed to eBay in connection with such use as described during the subscription process.
Notwithstanding anything to the contrary herein, you acknowledge and agree that eBay may, upon at least 30 days notice to you via email, change your eBay Stores subscription level if you do not meet eBay's then current applicable subscription requirements. Such change may increase or decrease the fees you pay eBay. You may cancel or downgrade your subscription at anytime, but Stores subscriptions are for a minimum 30-day period, and you will be billed for this period even if your subscription level is cancelled or downgraded within this period; subscription fees for subscription cancelled or downgraded after the first 30-day period will be pro-rated.
Availability and Support:
Support will be provided via email support. As long as all fees have been paid, if applicable, you will be entitled to free upgrades to the version of the software you licensed.
The software will not be made available twenty four (24) hours a day, and eBay may discontinue use of the software at any time in eBay's sole discretion.
Disclaimer of Warranties:
eBay disclaims any responsibility for any harm resulting from your use of the software. THE SOFTWARE IS PROVIDED TO YOU "AS IS" WITH NO WARRANTIES WHATSOEVER. EBAY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. EBAY DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SOFTWARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
Limitation of Liability:
UNDER NO CIRCUMSTANCES SHALL EBAY BE LIABLE TO YOU ON ACCOUNT OF YOUR USE OR MISUSE OF THE SOFTWARE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES WHETHER ANY SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF EBAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE FROM INABILITY TO USE THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold harmless eBay, and its subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, made by any third party due to or arising directly or indirectly out of your conduct or in connection with your use of the software, any alleged violation of these terms and conditions, any alleged violation of any applicable law or regulation. eBay reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, but doing so shall not excuse your indemnity obligations.
Term and Termination:
Either party may terminate this agreement immediately in the event of default by the other party. eBay may terminate this agreement at any time with ten (10) days notice. Upon any termination of this agreement, you shall immediately discontinue the use of the software and shall within ten (10) days return to eBay all copies of the software. You may also terminate this agreement at any time by destroying the software and all copies thereof. Your obligations to pay accrued charges and fees, if applicable, shall survive any termination of this agreement.
This agreement constitutes the entire agreement between you and eBay with respect to the software and supersedes all other agreements, contemporaneous and prior, between you and eBay with respect to the software. eBay's failure to enforce any provision of this agreement will not be construed as a waiver of any provision or right. In the event that a portion of this agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. Waiver by either party of a breach of any provision of this agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. eBay will not be liable in any amount for failure to perform any obligation under this agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation Internet outages, communications outages, fire, flood, war or act of God. Interpretation and enforcement of this agreement will be governed by the laws of the State of California (excluding its choice of law rules). Customer hereby consents to personal jurisdiction in the federal and state courts of Santa Clara County, California in any action arising out of or relating of use of the software.