End User License Agreement
This End User License Agreement (this “Agreement”) is a legal contract between you, either as an individual or an entity (“you”), and Visimation (“Company”), governing your use of the software and associated documentation published, distributed or otherwise made available by Company (this software and documentation, and any applicable updates provided by Company are, collectively, the “Software”).
BY INSTALLING, ACTIVATING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, WHICH ARE CONDITIONS TO Company’S LICENSE GRANT TO YOU pursuant this Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, ACTIVATE, COPY, OR USE THE SOFTWARE.
1. LICENSE GRANT and Restrictions. The Software is licensed to you and not sold. Subject to the terms of this Agreement, Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, and revocable license to use the Software for your personal or internal business purposes.
2. Restrictions on Use. You acknowledge and agree that you will not, and you agree not to enable others to: (a) reproduce the Software, except as expressly permitted under Section 1; (b) modify, adapt, translate or create any derivative works of the Software; provided, that this restriction shall not be deemed to prohibit you from using any features or functionality of the Software that are inherent to the use of the Software; (c) attempt to circumvent or disable the Software or any technology features or measures in the Software including, without limitation, any access controls or copyright protection mechanisms, by any means or in any manner; (d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software; (e) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the Software to any third party; (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software; or (g) use the Software in any manner to aid in the violation of any third-party intellectual property rights, including without limitation copyrights, trademarks, trade secrets, and patents, or the applicable laws of the jurisdictions in which you are using the Software, including without limitation libel, defamation, obscenity, and privacy-related torts.
3. RESERVATION OF RIGHTS. You acknowledge that the Software is protected by copyrights and other intellectual property and proprietary rights. Company reserves all of these rights with respect to the Software, except for the license expressly granted to you in Section 1. You acknowledge that, except for the express license granted to you in Section 1, no right, title, interest or license in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to you. You agree not to take any action that interferes with or challenges, in any manner, Company’s rights with respect to the Software.
4. REGISTRATION INFORMATION. As part of any Software registration process, Company may request registration-related information, including your name and e-mail address. By providing this information, you consent to its collection and use by Company to provide communications regarding the Software.
5. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Company DISCLAIMs ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OR LACK OF VIRUSES, and any warranties regarding the security, reliability or timeliness of the Software. Company DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE. Company does not warrant that use of the Software will be continuous or uninterrupted and Company shall not be responsbile or liable for ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THe SOftware. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. YOU UNDERSTAND AND AGREE THAT ANY SOFTWARE, MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, DEVICE, SYSTEM OR NETWORK, INCLUDING ANY LOSS OR CORRUPTION OF DATA.
6. LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Company BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, COMPUTER SYSTEM FAILURE, MALFUNCTION OR OTHER PECUNIARY LOSS RELATING TO OR ARISING OUT OF THIS AGREEMENT, or THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL Company’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN CONNECTION WITH this Agreement or THE SOFTWARE EXCEED $25. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
7. EXPORT RESTRICTIONS. Company makes no representation that the Software is appropriate for use in your country of use. You acknowledge that no part of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported into (or to a national or resident of) any countries subject to U.S. trade embargo (currently Iran, Cuba, Syria, North Korea, and Sudan), or anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using the Software, you are agreeing to the foregoing, and are representing and warranting that you are not located in or under the control of a national or resident of any applicable country or on any applicable list. You further acknowledge and understand that certain functionality of the Software, such as encryption or authentication, may be subject to import restrictions in the event you transport the Software from the country of delivery and you are responsible for complying with all applicable restrictions.
8. INDEMNITY. You hereby agree to indemnify, defend and hold Company harmless from and against any and all liabilities, damages, claims, fines and expenses (including reasonable attorney’s fees and costs) arising out of any breach of this Agreement by you.
9. TERMINATION. Without prejudice to any other Company rights, Company shall have the right to immediately terminate this Agreement upon notice to you if you fail to comply with your obligations under this Agreement and fail to remedy the applicable non-compliance within thirty (30) days following notice from Company. Upon termination, you must immediately cease all use of the Software and destroy all copies of the Software.
10. TRANSFER. You may not assign or otherwise transfer, by operation of law or otherwise, this Agreement or the Software.
11. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written understandings.
12. Governing Law; Exclusive Venue for Litigation. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. You and Company both consent to the exclusive jurisdiction of the state and federal courts sitting in Orange County, California.
13. United Nations Convention on Contracts for the Sale of International Sale of Goods. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
14. Severability; Waiver. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the applicable provision shall be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no applicable modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive the applicable term or condition or any subsequent breach thereof.