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PictoColor Corporation
CorrectPhoto and ImageTitler Single User License
Agreement and Limited Warranty
1. NOTICE. This PictoColor Single User License Agreement ("SULA") is a
legal agreement for the PictoColor Software Product in which this SULA
is contained, which includes computer software and may include
associated media, printed materials, and "online" or electronic
documentation (collectively the "Software Product"), between you and
PictoColor Corporation. ("PictoColor"). By installing, copying, or
otherwise using the Software Product, you agree to be bound by the terms
of this SULA. You must indicate your agreement to be bound by the terms
of this SULA by pressing the "I ACCEPT" button on the Software Product's
installation program, or else you will not be able to install the
Software Product.
If you do not agree to the terms of this SULA, you may not install or
use the Software Product; you may, however, within 30 days of your
initial purchase of a copy of the Software Product, return the entire
copy of the Software Product (including all computer media, packaging
and documentation) either to PictoColor's Customer Service department or
to the retailer from which you purchased the Software Product, for a
refund of the amount indicated by your sales receipt for the Software
Product, in which event your rights under this SULA are immediately
terminated. If you are installing the Software Product on a computer
that is not owned by you, you are bound to the terms of this SULA both
in your individual capacity and as an agent of the owner of the
computer, and your actions will bind the owner of the computer. You
represent and warrant to PictoColor that you have the capacity and
authority to enter into this Agreement on your own behalf as well as on
behalf of the owner of the computer the Software Product is being
installed upon. For purposes of this SULA, the "owner" of a computer is
the individual or entity that has legal title to the computer or that
has the possessory interest in the computer if it is leased or loaned by
the actual title owner.
2. COPYRIGHT. The Software Product is protected by copyright laws and
international copyright treaties, as well as other intellectual property
laws and treaties. All title and copyrights in and to the Software
Product (including but not limited to any images and photographs
incorporated into the Software Product) are owned by PictoColor or its
suppliers.
3. GRANT OF LICENSE. The Software Product is licensed, not sold. Subject
to the condition that you are in compliance with the terms of this SULA
you may install and use one copy of the Software Product on a single
computer for use by a single simultaneous operator. No other use,
copying or distribution of the Software Product is permitted. You may
not rent the Software Product, nor may you offer use of it to others
through an Internet online service or application service provider. If
you are installing this copy of the Software Product as an upgrade,
update, patch or enhancement previous release of the same Software
Product which was installed on the same computer, your rights under the
previous license agreement for the Software Product are terminated, and
all of your use of the Software Product (including its previous
versions) are solely under the terms of this license agreement.
4. LIMITATIONS. Except to the extent that such a restriction is
unenforceable under local law, you may not reverse engineer, decompile,
or disassemble the Software Product. The Software Product is licensed as
a single product, and its component parts may not be separated for use
on more than one computer. You may not modify, amend, or create
derivative works of the Software Product.
5. TERM. If the Software Product that was distributed to you was labeled
as an EVALUATION VERSION, TRIAL VERSION, or TRY & BUY VERSION (or its
functional equivalent) (an "Evaluation Version"), the license granted
under this SULA commences upon the installation of the Software Product
and is effective for the term of the evaluation or trial following the
date you install the Software Product (the "Evaluation Term").
Evaluation Version Software Products may include software code intended
to disable their functionality after the expiration of the Evaluation
Term. You may take no actions to circumvent the operation of such
disabling code, and you accept all risks that might arise from such
disabling code. If the Software Product was not distributed as an
Evaluation Version, or if you converted an Evaluation Version
installation of the Software Product to a non-Evaluation Version of the
Software Product by authorized use of the conversion mechanism provided
with the Software Product (in each case either being or resulting in a
"Full-License Version"), the licenses granted under this SULA commence
upon the installation of the Software Product and are effective in
perpetuity unless terminated as per the terms of this Agreement.
6. TERMINATION. Upon the expiration of the Evaluation Term (if any),
your rights under this SULA terminate automatically without notice from
PictoColor. Without prejudice to any other rights, PictoColor may
terminate this SULA or your rights under this SULA at any time if you
fail to comply with the terms and conditions of this SULA. Upon
termination of your rights under this SULA for any reason, or upon
termination of the SULA itself, you must destroy all copies of the
Software Product and all of its component parts in your possession
(including all component parts, the media and printed materials, any
previous versions, and this SULA). The terms of this paragraph shall
survive any termination of this SULA.
7. TRANSFER. You may NOT transfer all of your rights under this SULA
(except if your rights are in an Evaluation Version).
8. LIMITED WARRANTY. The warranties and disclaimers described in this
paragraph are collectively the "Limited Warranty". PictoColor warrants
to you (and only you) that the Software Product will perform
substantially in accordance with the accompanying documentation (if any)
for a period of ninety (90) days from the date of original purchase of a
license to the Software Product from an authorized retailer or directly
from PictoColor (or the date you have obtained authorization from
PictoColor or an authorized retailer to convert an Evaluation Version to
a Full-License Version) (in each case the "Purchase Date"). Implied
warranties on the Software Product, to the extent required by applicable
law, are limited to ninety (90) days from the Purchase Date. Some states
do not allow limitations on how long an implied warranty lasts, so the
above limitation may not apply to you. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, PICTOCOLOR AND ITS SUPPLIERS DISCLAIM ALL OTHER
WARRANTIES AND CONDITIONS WITH REGARD TO OR ARISING OUT OF THE SOFTWARE
PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT AND/OR ACCURACY OF INFORMATION. The Limited Warranty is
void if failure of the Software Product has resulted from accident,
abuse, misapplication, use of the Software Product other than as
described in the documentation issued by PictoColor, use of the Software
Product in combination with other Software Products that are not
described as compatible in the documentation issued by PictoColor, or
your breach of the terms of this SULA. This warranty gives you specific
legal rights, and you may also have other rights which vary from State
to State. No individual (except a duly authorized officer of PictoColor)
and no reseller or retailer has any authority to amend or add to any of
the above representations and disclaimers.
9. YOUR REMEDY. Your exclusive remedy for any breach of the Limited
Warranty is for you to give us notice of the breach by returning to
PictoColor (at the address shown below) a copy of your purchase receipt
for your copy of the Software Product and a description of the alleged
breach, and then, at PictoColor's discretion, PictoColor shall either:
(a) return the price you paid (if any) for the Software Product (at
which time your rights under this SULA are deemed to have terminated);
or (b) repair or replace the Software Product. The Limited Warranty
period for any replacement Software Product will be extended for the
remainder of the original warranty period or thirty (30) days after the
replacement Software Product is delivered to you, whichever is longer.
If your license is for an Evaluation Version, your exclusive remedy for
any breach of this SULA, including a breach of the Limited Warranty,
shall be to terminate your rights under this SULA. Your remedies
described in this paragraph are your exclusive remedies, and shall not
be deemed to fail in their essential purpose so long as PictoColor is
willing to repair or replace the Software Product or return the price
you paid for the Software Product.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL PICTOCOLOR OR ITS SUPPLIERS BE LIABLE
FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY
OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE
SOFTWARE PRODUCT, EVEN IF PICTOCOLOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN ANY CASE, PICTOCOLOR'S ENTIRE LIABILITY UNDER ANY
PROVISION OF THIS SULA SHALL BE LIMITED TO THE GREATER OF THE AMOUNT
ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR US$5.00. Some states do
not allow the exclusion or limitation of incidental or consequential
damages, so the above limitation or exclusion may not apply to you.
11. STATEMENT CONCERNING U.S. GOVERNMENT USERS. The Software Product is
commercial computer software developed exclusively at private expense,
and in all respects is proprietary data belonging to PictoColor or its
suppliers. The Software Product is comprised of "commercial computer
software" and "commercial computer software documentation" as such terms
are used in 48 C.F.R § 12.212. Consistent with 48 C.F.R. § 12.212 and 48
C.F.R. § 227.7202-1 through § 227.7202-4, all U.S. Government licensees
acquire the Software Product with only those rights set forth in this
SULA.
12. SITE LICENCES. The owner of the computer that you are installing the
Software Product upon may have entered into a broad license agreement
with PictoColor governing the use of certain PictoColor products
including this Software Product. To the extent that the owner of the
computer has entered into such an agreement that specifically states
that it governs the use of the Software Product on computers owned by
the owner, then any conflict between that agreement and this SULA shall
be resolved in favor of the terms of that agreement, but otherwise this
SULA shall simultaneously govern your license to the Software Product.
13. THIRD PARTY WORKS. To the extent that any third party's intellectual
property is incorporated within the Software Product, you agree that
such third party is a third-party beneficiary of the terms of this SULA
to the extent of the third party's license to PictoColor.
14. SAMPLES. The Software Product may be provided with certain "Sample
Images" intended to demonstrate use of the Software Product or provide a
base starting point for use of the Software Product. If Sample Images
are provided, they are considered part of the Software Product for
purposes of this SULA.
15. GENERAL. This SULA constitutes the entire agreement between you and
PictoColor concerning the Software Product. No terms of any purchase
order, acceptance, purported amendment, or any document or communication
other than an agreement expressly agreed upon in writing by a duly
authorized officer of PictoColor shall replace, modify, amend or
override this SULA. If any provision of this SULA is held to be
unenforceable for any reason, such provision shall be reformed only to
the extent necessary to make it enforceable, and such decision shall not
affect the enforceability of such provision under other circumstances,
or of the remaining provisions hereof under all circumstances. No waiver
by PictoColor of any breach of any term or provision of this SULA shall
be construed to be a waiver of any preceding or succeeding breach of the
same or any other term or provision hereof. Our various rights and
remedies hereunder shall be construed to be cumulative and no one of
them is exclusive of any other or of any right or remedy allowed by law
or in equity. This SULA shall be governed by and construed in accordance
with the laws of the State of Minnesota, USA (without regard to its
choice of law principles), except to the extent the local law of your
local jurisdiction requires use of your local jurisdiction's law, and
shall benefit PictoColor, its successors and assigns. ANY CLAIM OR
DISPUTE BETWEEN YOU AND PICTOCOLOR OR AGAINST ANY AGENT, EMPLOYEE,
SUCCESSOR OR ASSIGNEE OF PICTOCOLOR, WHETHER RELATED TO THIS AGREEMENT
OR OTHERWISE, AND ANY CLAIM OR DISPUTE RELATED TO THIS AGREEMENT OR THE
RELATIONSHIP OR DUTIES CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING THE
VALIDITY OF THIS ARBITRATION CLAUSE, SHALL BE RESOLVED BY BINDING
ARBITRATION BY THE NATIONAL ARBITRATION FORUM TO BE HELD IN MINNEAPOLIS,
MINNESOTA UNDER ITS CODE OF PROCEDURE THEN IN EFFECT. Any award of the
arbitrator(s) may be entered as a judgment in any court of competent
jurisdiction. Except as may be required by law, neither a party nor an
arbitrator may disclose the existence, content, or results of any
arbitration hereunder without the prior written consent of both parties.
Information concerning such arbitration may be obtained, and claims may
be filed, at any office of the National Arbitration Forum or at P.O. Box
50191, Minneapolis, MN 55405. The United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this SULA. Should
you have any questions concerning this SULA, or if you need to contact
PictoColor for any other reason, please contact: Customer Service,
PictoColor Corporation, 151 W Burnsville Parkway, Suite 200, Burnsville,
MN 55337 USA, Telephone: (952) 894-8890,
E-mail: pictoservice@pictocolor.com.
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