Terms of Service, LiveWhale Software

LiveWhale Software Platform: License Terms

These License Terms (the “Terms”) govern your use of products on the LiveWhale software platform, including LiveWhale Calendar, LiveWhale CMS, and LiveWhale Storyteller (the “Software”) provided by White Whale Web Services, Inc. (“White Whale” or “we” and “us”) and are incorporated into and made part of every subscription, order, and agreement between you and White Whale relating to the Software (each an “Order”).

Subscriptions. The subscription term shall be as set forth in the applicable Order, and unless otherwise agreed in the applicable Order: (a) you agree to pay the fees set forth in the Order in advance and that such fees are nonrefundable; and (b) you may cancel a subscription but fees will not be prorated or returned.
License. Subject to your compliance with these Terms and the applicable Order (including payment obligations), we grant you a limited, nonexclusive, non-sublicensable, non-transferable license to use the Software for its intended purpose. You agree not to disassemble or reverse engineer the Software or to use the Software in any manner detrimental to White Whale or for any unlawful purpose.
Your Content. We understand and agree that content, data and materials provided by you and your users (“Your Content”) belong to you or your users, and that we are to utilize Your Content only in connection with our provision of the Software or for analytical purposes (e., to improve our Software, services and products), and you grant White Whale the right to do so.
Confidential Information. Each party may disclose to the other certain sensitive information that is not publicly available and that is either identified as confidential or should be understood by the recipient to be confidential under the circumstances (collectively, “Confidential Information”). Each party will maintain in confidence and not use the other party’s Confidential Information, except as is necessary to perform its obligations under this Agreement. You understand that the Software is not intended for use with any sensitive information, and you agree that you will not upload to, or store on, the Software any personal health, credit or other sensitive information.
Limited Warranties. White Whale warrants that: (i) the Software will materially conform to any specifications agreed upon in the applicable Order; and (ii) to White Whale’s knowledge, your use of Software as intended will not infringe upon any third party’s intellectual property rights.
Disclaimer. Other than as expressly set forth in Section 5: (a) the Software is provided “AS IS”; and (b) White Whale disclaim all warranties, express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability and error-free operation.
Limitation To the maximum extent permitted by law: (a) White Whale’s liability in any action relating to the Software shall be limited to the fees paid by you for use of the Software in the 12 months preceding the filing of the action; and (b) White Whale shall not be liable for any incidental, consequential, special or indirect damages.
Access. You agree to provide, in a reasonably timely fashion, necessary access, credentials and information as reasonably requested by White Whale to enable it to provide the Software.
FERPA and HIPAA. These are laws that protect the privacy of personally identifiable information. Because the Software allows content managers to collect information from website visitors, it is technically possible for content managers to request information that is considered confidential under FERPA or HIPAA regulations.

White Whale maintains reasonable administrative, physical and technical standards to ensure that no unauthorized persons are able to access information gathered via the Software. We do not utilize information submitted via the Software for any purpose. You are solely responsible for ensuring that your information collection practices are compliant with all applicable federal, state, and local regulations.

Governing Law; Disputes. Unless otherwise agreed in the Order: (a) these Terms, our Service Level Agreement, our Hosting Terms and each Order (collectively referred to herein as the “Agreement”) shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions; and (b) any action arising out of relating to the Software shall be brought and heard in the concomitant state or federal court for the County of Alameda, California. The parties irrevocably consent to the exclusive jurisdiction of such courts, and waive all arguments and defenses concerning venue and the convenience of the forum. The substantially prevailing party in any action arising out of or relating to this Agreement shall be entitled to its reasonable attorney’s fees, expert’s fees and costs.
Miscellaneous. This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements, understands, warranties and representations concerning such subject matter. Should any provision herein be found unenforceable by a court of competent jurisdiction, it shall be revised to the extent necessary to render it enforceable, or, if incapable of such revision, shall be severed from this Agreement, and the remainder of this Agreement shall be enforced. This Agreement is the product of negotiation between sophisticated parties, and shall not be construed in favor of or against either party.

LiveWhale Software Platform: Terms and Conditions

1. Definitions

“LiveWhale” refers to any copyrighted work licensed under this License. Each licensee is addressed as “you”. “Licensees” and “recipients” may be individuals or organizations.

To “modify” a work means to copy from or adapt all or part of the work in a fashion requiring copyright permission, other than the making of an exact copy.

The “source code” for a work means the preferred form of the work for making modifications to it.

2. Copying and Distribution

Each LiveWhale installation is typically installed live on a single domain, paired with a single database representing a defined set of stakeholders; this license is good for a single institutional installation. To serve multiple subdomains (for example, representing individual departments or offices within a single organization), a single LiveWhale installation can be shared if subdomains are hosted on a single physical server. If multiple physical servers are used, multiple installations of LiveWhale are allowed so long as they point to a single (or replicated) database representing a defined set of stakeholders. If your particular technical or institutional environment requires more than one installation to serve additional sets of stakeholders, separate permission for such installations must be agreed upon in writing. This license permits a single non-public test installation. Non- public backup copies are permitted.

Additional installations or deployments to additional stakeholders, even within your internal intranet, are considered “public” displays and distributions of LiveWhale, and require explicit permission in writing.

3. Modifications

3.1 Notices: To the extent that any LiveWhale source code begins with copyright notices, introductory material, credits, and/or technical specifications, these may not be removed.

3.2 Trademarks: The LiveWhale name is a trade mark of White Whale Web Services, Inc. and may not be removed anywhere it occurs in the source code.

3.3 Reporting to White Whale: LiveWhale contains a diagnostic mechanism which routinely checks for problems such as orphaned files or records, non-writable directories, etc. as well as records statistics about the usage of modules (for example, how many news items are in the system). This information is valuable to the development team in order to find and patch bugs immediately and ensure the highest quality of the CMS.

The information transmitted to White Whale contains statistical metadata only. Absolutely no content, sensitive or not, is sent to our server in accordance with our mutual privacy concerns. This feature is meant to diagnose general server issues, and is completely agnostic in regard to your content. If you have an annually recurring LiveWhale license, the feature may not be disabled.

3.4 Core Files: LiveWhale’s core application files, found in the /livewhale/core directory, cannot be reliably upgraded if you modify them. Thus, while you are technically free to modify LiveWhale core application files, you waive all rights described in Section 6, including the rights to free upgrades and free email support if you modify core application files. A specifically approved directory for adding to or modifying LiveWhale functionality without compromising its core files is provided with the software. This directory is located at /livewhale/client/.

Provided that you comply with the above limits on modifications, you may modify your copy or copies of LiveWhale or any other portion of it. LiveWhale utilizes an architecture that also enables you to create plugins for use with your LiveWhale installation. You own all rights and interest in your modifications to LiveWhale and/or any plugins you create, though we encourage you to consider sharing your creations with a larger community of LiveWhale users.

4. Termination of Rights

You may not copy, modify, sublicense, or distribute LiveWhale except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute LiveWhale is void, and will automatically terminate your rights under this License.

5. Patents

Software patents threaten the use and distribution of all software. White Whale is not aware of any patents that would be infringed through your use of LiveWhale as distributed to you by White Whale. However, White Whale has not undertaken any investigation of software patents and can provide no warranty or guarantee that such patents will not be asserted by a third party.

6. Warranty

Each version of LiveWhale depends upon system requirements established by White Whale. Provided that you comply with all the terms of this License and provided that your system meets or exceeds the system requirements for a given version of LiveWhale, you will be provided with the following LiveWhale Warranty:

6.1 LiveWhale upgrades will be provided at no cost for the term of this License.

6.2 Should LiveWhale require servicing, repair, or correction, you are entitled to support by email at no cost for the term of this License as established in the Service Level Agreement. Understanding that conditions affecting LiveWhale repair may be beyond White Whale’s control, White Whale will make best efforts to assist licensees towards the best possible outcome.

The express warranties in Sections 6.1 and 6.2 are in lieu of, and White Whale disclaims, all other warranties, representations or conditions, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.