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PIXELTURE, INC.
END USER LICENSE AGREEMENT & TERMS OF SERVICE & USE
This End User License Agreement (this “Agreement”) is a legal contract between you and any institution you represent, as a user of one or more of Pixelture, Inc.’s software products or services in any form, paid or free, (the “Software”), and Pixelture, Inc., a Utah corporation (“Pixelture”). Please read the terms of this Agreement carefully before using Pixelture’s software applications and services. The terms of this Agreement apply to the Software, which includes the media on which you received it, if any. The terms of this Agreement also apply to any updates, supplements, Internet-based services and support services for the Software, unless other terms accompany those items.
By using the Software, you accept these terms. If you do not accept the terms of this Agreement, you may not use or access the Software. If you comply with these license terms, you have the rights below for each license you acquire from Pixelture.
1.SOFTWARE OVERVIEW.
1.1. Software License. Pursuant to the other terms and conditions in this Agreement and so long as you comply with the terms of this Agreement, Pixelture hereby grants you a non-exclusive, non-transferable, limited license to install the Software on one or more computers owned by you and under your legitimate control and use the Software in connection with your business and in the manner and for the purposes described in the related explanatory written materials and files available at www.pixelture.com (the “Documentation”). Furthermore, Pixelture grants you non-exclusive, non-transferable authorization to a user account, manageable on www.pixelture.com, for the purposes described on www.pixelture.com, including providing access to manage account settings and download Software.
1.2. Restrictions on Licenses. You agree that you will not, under any circumstances: (a) in whole or in part, copy, photocopy, reproduce, translate, derive source code from, modify, adapt, translate or create derivative works based on the Software; (b) reverse engineer, decompile, or disassemble any part of the Software; (c) modify or remove any patent, trademark, copyright or other proprietary markings or restrictive legends placed on the Software or otherwise modify or cause to be modified any of the files that are part of the Software in any way not expressly authorized by Pixelture; or (d) use the Software for any purpose not expressly authorized by this Agreement. All copies of the Software shall contain all proprietary markings and restrictive legends exactly as they appear on the originals.
1.3. Ownership; Proprietary Rights. The Software is licensed, not sold. No title to, ownership of, or copyright, trade secret or other proprietary rights in the Software is transferred pursuant to or under this Agreement and any and all rights not specifically granted to you by this Agreement remain vested in Pixelture and its licensors. You acknowledge and agree that the Software is the intellectual property and trade secret of Pixelture and its licensors.
1.4. Injunctive Relief. You hereby acknowledge and agree that, notwithstanding any other provisions of this Agreement, breach or threatened breach of Sections 1.1 through 1.3 and 8 of this Agreement shall cause Pixelture irreparable damage for which recovery of money damages would be inadequate, and that Pixelture or its licensors, therefore, may obtain timely injunctive relief to protect their rights under this Agreement, in addition to any and all other remedies available at law or in equity.
1.5. Suspension of Access. If at any time your use of the Software does not comply with the terms of Sections 1.1 and 1.2 hereof or otherwise violates the terms of this Agreement, Pixelture may immediately terminate, without notice, your access and use of the Software until such time, in Pixelture’s sole discretion, you become compliant with this Agreement. In addition, Pixelture may interrupt certain functions of the Software when reasonably necessary for testing, maintenance or scheduled backups and will make commercially-reasonable efforts to provide you with advance notice of such interruptions. Pixelture may also interrupt functions as needed in the case of emergency without notice.
1.6. Application Connectivity. The Software may include functionality to send diagnostic or other information or metrics to Pixelture via Internet connection. Such information may be used by Pixelture for measuring software performance, assist ongoing development, provide aggregate usage metrics as well as individual use metrics, and monitor compliance with the number and type of authorized licenses. By accepting this agreement, you acknowledge this and authorize Pixelture to collect this information. You furthermore consent to allow the Software to be updated automatically, through Internet connection, for the purposes of application patches and related Software updates.
1.7 User Accounts. The Software uses a web-based account to identify you and/or your organization. Creating more than one account for yourself or for your organization, outside of any duly authorized agreement with Pixelture, is not authorized. If duplicate user accounts are found, or Pixelture suspects abuse of any kind, Pixelture reserves the right, without notice or warning, to suspend account access and Software use until such time as Pixelture determines. You also authorize Pixelture to contact you using your user account info for any reasonable purpose.
1.8 Flagrant Abuse. You agree that at no time will you attempt to interfere with the Software of the www.pixelture.com website for the purposes of causing service interruptions or otherwise reducing the performance of the Software or causing unreasonable support requirements of Pixelture. Any suspected Flagrant Abuse will result in immediate termination of your account access and the use of the Software, and may result in legal action. By accepting this agreement, you also agree to pay for the damages and legal fees resulting from your Flagrant Abuse, upon such ruling by a judge or other authorized governing body within the State of Utah.
2.COMPLIANCE WITH APPLICABLE LAWS AND THIRD PARTY AUTHORIZATIONS.
2.1. You hereby represent and warrant that you have all rights, consents, governmental permits, licenses and authorizations necessary for you to enter into and perform your obligations under this Agreement. You further acknowledge that, notwithstanding anything herein to the contrary, if you do not have the right to receive and utilize the Software, you shall not be entitled, pursuant to this Agreement, to receive and utilize the Software and, in no event, will Pixelture be liable for any license or other fees due to or payable to any third party by you with respect to the Software.
3.TERM AND TERMINATION.
3.1. This Agreement is effective until terminated. Either party may terminate this Agreement if (a) the other party ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, (b) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) days or (c) makes an assignment for the benefit of creditors. Pixelture may terminate this Agreement immediately upon written notice to you, without providing an opportunity to cure, if you breach any of your representations, warranties, obligations or covenants under this Agreement (including without limitation a failure to timely pay any amounts due in connection with the license to the Software granted pursuant to this Agreement) which breach is not cured within ten (10) days following receipt of written notice thereof.
4.EFFECT OF TERMINATION.
4.1. Promptly upon any termination or expiration of this Agreement, (a) the licenses and other rights granted under the Agreement shall terminate and you shall cease all use of the Software and (b) you shall remove and destroy all copies of the Software subject to this Agreement.
5.INDEMNIFICATION.
5.1. You will indemnify, defend and hold harmless Pixelture, its directors, shareholders, officers, employees, partners, agents, subsidiaries, affiliates, subcontractors and assignees, or any of them, from and against any and all claims, demands, costs, expenses, losses, liabilities and damages (including, but not limited to, attorneys’ fees and costs of suit), to the extent arising from, in connection with, or related to (a) your use of the Software; (b) any modifications, additions or changes to the Software or any content distributed with the Software made by you; (c) your acts or omissions or the acts or omissions of your employees or contractors in connection with their access to and use of the Software and (iv) your negligence or willful misconduct or the negligence or willful misconduct of your employees or contractors.
6.LIMITATION OF LIABILITY.
6.1. IN NO EVENT WILL PIXELTURE, ITS LICENSORS, PARENTS, SUBSIDIARIES OR AFFILIATES BE LIABLE IN ANY WAY ARISING OUT OF THIS AGREEMENT, THE SOFTWARE OR THE USE OF THE SOFTWARE, WHETHER IN AN ACTION FOR OR ARISING OUT OF A BREACH OF CONTRACT, TORT OR OTHER CAUSE OF ACTION, FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, INCLUDING ANY CONSEQUENTIAL, PUNITIVE, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE OR CLAIMS BY A THIRD PARTY EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. PIXELTURE’S AND ITS LICENSORS’, PARENTS’, SUBSIDIARIES’ AND AFFILIATES’ AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, THE SOFTWARE OR THE USE OF THE SOFTWARE SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO PIXELTURE. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT.
7.DISCLAIMER OF WARRANTIES.
7.1. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The entire risk arising out of the use or performance of the Software remains with you.
8.CONFIDENTIALITY.
8.1. You hereby agree that any information that is disclosed by Pixelture to you in connection with this Agreement or your use of the Software, including the terms of this Agreement, shall not be disclosed to any person other than your employees that have a “need-to-know” such confidential information to view, access or otherwise use the Software. You further agree to take all reasonable measures to maintain the confidentiality of such information.
9.COMPLIANCE WITH LICENSES.
9.1. If you are a business, company or organization, you agree that, no more than once every twelve (12) months, Pixelture or its authorized representative shall, upon ten (10) days prior notice to you, have the right to audit and inspect your records, systems and facilities to verify that your use of the Software is in conformity with the terms of this Agreement. If an audit discloses that your use is not in conformity with this Agreement, you shall immediately obtain valid licenses to bring your use into conformity. You also agree to allow the use of usage metrics, defined in section 1.6, to be used in the course of all audits.
10.THIRD-PARTY PROGRAMS.
10.1. The Software may contain third-party programs. The license terms applicable to those programs apply to your use of them.
11.EXPORT RESTRICTIONS.
11.1. The Software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users and end use.
12.ENTIRE AGREEMENT.
12.1. This Agreement sets forth the entire agreement of the parties hereto and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein.
13.GOVERNING LAW.
13.1. This Agreement will be governed and interpreted by the laws of the State of Utah, without regard to its conflict of law rules. In the event any litigation or dispute arises in connection with this Agreement, jurisdiction and exclusive venue for such litigation or dispute shall be in the federal and state courts located in the State of Utah; provided, however, that the parties shall also have the right to enforce a judgment in any court of competent jurisdiction. The parties hereby submit to the jurisdiction of such courts and waive any defense of forum non conveniens.
14.SEVERABILITY.
14.1. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable laws so as to be valid and enforceable, or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken and the remainder of this Agreement shall remain in full force and effect.
15.AMENDMENTS.
15.1. Pixelture reserves the right, at its sole discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement when Pixelture upgrades or updates the Software, effective upon prior notice as follows: Pixelture will post the revised version of this Agreement on its website and may provide such other notice as Pixelture may elect in its sole discretion. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you may terminate this Agreement in accordance with the terms hereof. Your installation and use of any of Pixelture’s updates or modifications to the Software or your continued use of the Software following notice of changes to this Agreement will demonstrate your acceptance of any and all such changes.
16.ASSIGNMENT.
16.1. You may not assign this Agreement or any right, interest or benefit under this Agreement, nor delegate any of its duties or obligations hereunder and any change of ownership or control shall be deemed an assignment hereunder.
17.HEADINGS.
17.1. Section headings and captions are for convenience only and are not part of this Agreement.
18.SURVIVAL.
18.1. Sections 1, 5 to 8, 13, 14 and 18 of this Agreement and any provisions of this Agreement that, by their sense and context, are intended to survive performance by either or both parties shall survive termination of this Agreement.