IMPORTANT - READ CAREFULLY: This Click-Wrap Software License Agreement (hereinafter “Agreement”) is a legal contract between you (either an individual or a single business entity, hereinafter referred to as “Licensee”) and Photo Booth Solutions LLC, a California limited liability company (“Company”), for the software that is directly accessible through this installation process, but in object code form only (“Software”). The term “Software” also includes any supplied corrections, bug fixes, enhancements, updates or other modifications created and supplied by Company, if any, and any user manuals or other documentation supplied by Company in conjunction with the Software.
BY CLICKING THE “ACCEPT” BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
1. License Terms.
(a) Grant of License. Subject to the terms hereof, payment of all fees and any applicable user/use limitations, Company grants Licensee a personal, non-sublicensable, nonexclusive, right to use the Software (i) on a specifically authorized machine(s) authorized by Company and (ii) in accordance with Company’s applicable user documentation and price list. Company retains ownership of the Software and Licensee will maintain the copyright notice and any other notices that appear on the Software or on any media containing the Software.
(b) Updates, Malware Detection Content and Support Services. Updates and malware detection content and/or support services are not necessarily provided with the Software, and may require additional payment or include additional terms and conditions. However, to the extent that an update to the Software and/or malware detection content is provided, such update/content shall be deemed “Software” provided subject to this Agreement, and shall be licensed for use only on the specific machine(s) for which it is licensed. If malware detection content/support services are provided, Company reserves the right to change the scope or duration of such services at any time, and to access, freely use and distribute data collected from Licensee through such services. If such services are made available, Licensee may be required to pay fees or other charges for use or access to some or all such services, which fees and terms will be specified in the invoice or order form for such service.
(c) Restrictions. Licensee will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software (except to the limited extent that applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, the Software (except as expressly and specifically authorized by Company), (iii) without the express prior written consent of Company, conduct any benchmarking or comparative study or analysis involving the Software (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of the Software to interoperate with Licensee’s internal computer systems; (iv) disclose to any third party any Benchmarking or any other information related thereto; (v) use the Software or any Benchmarking in connection with the development of products that compete with the Software; or (vi) reproduce, alter or modify the Software. Prior to disposing of any media or apparatus containing any part of the Software, Licensee shall completely destroy the Software contained therein. All the limitations and restrictions on Software in this Agreement also apply to documentation and screens. Further, Software licensed without charge or for a nominal charge will be deemed a free evaluation license and only may be used for purposes of evaluating whether to obtain a paid license, and not for any productive use. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE LICENSE PERIOD AND/OR USE INCONSISTENT HEREWITH. Licensee acknowledges that Software may be distributed alongside or contain or use certain open source or other third party software (“Third Party Software”). THIRD PARTY SOFTWARE IS (IN ADDITION TO THE TERMS AND CONDITIONS OF THIS AGREEMENT), SUBJECT TO AND GOVERNED BY (AND LICENSEE AGREES TO, AND WILL INDEMNIFY COMPANY FOR NONCOMPLIANCE WITH) THE RESPECTIVE LICENSES FOR SUCH THIRD PARTY SOFTWARE. No rights or licenses are granted other than as expressly and unambiguously set forth herein.
(d) Confidentiality. The Software in source code form remains a confidential trade secret of Company and/or its suppliers. The Software is protected by the copyright and other intellectual property laws of the United States and international treaties. Licensee acknowledge that, in the course of using the Software, Licensee may obtain or learn information relating to the Software, which may include, without limitation, information relating to the performance, reliability or stability of the Software, operation of the Software, know-how, techniques, processes, ideas, algorithms, and software design and architecture (“Proprietary Information”). As between the parties, such Proprietary Information shall belong solely to Company. During and after the term of this Agreement, Licensee shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information to any third party.
(e) Termination. This Agreement is effective until terminated. Licensee may terminate this Agreement at any time by destroying all copies of the Software and related documentation. This Agree¬ment will terminate automatically if Licensee fails to pay the full invoiced amount for the Software or fails to comply with any term or con¬dition of this Agreement, including any attempt to transfer a copy of the Software to another party except as provided in this Agreement. Licensee agrees that upon such termina¬tion, Licensee will destroy all copies of the Software and related documentation. Except as otherwise expressly provided herein, the terms hereof shall survive any termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
2. Limited Warranty and Disclaimer.
(a) Limited Warranty. Company warrants to Licensee (and only Licensee) that the Software will at all times substantially comply with Company’s then current specifications for the Software.
(b) Disclaimers.
(i) EXCEPT FOR THE EXPRESS WARRANTY ABOVE, THE PROGRAMS ARE PROVIDED TO LICENSEE WITH NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF WARRANTIES AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(ii) EXCEPT FOR THE EXPRESS WARRANTY ABOVE, THE SOFTWARE, DOCUMENTATION AND OTHER FILES ARE PROVIDED “AS IS.” COMPANY AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS LICENSEE MAY OBTAIN BY USING THE SOFTWARE. COMPANY AND ITS SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
(iii) Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to Licensee. This warranty gives Licensee specific legal rights, and Licensee may also have other legal rights, which vary from jurisdiction to jurisdiction.
(c) Limitation of Liability. IN NO EVENT WILL COMPANY OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST DATA, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. Export; US Government Restricted Rights. The Software, including technical data, may be subject to U.S. export control laws and/or export or import regulations in other countries. Licensee will not possess or use the Software, or allow the transfer, transmission, export, or re-export of the Software or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency of any country. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, the Software and accompanying documentation provided by Company are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.
4. Miscellaneous.
(a) Assignment. Neither this Agreement nor the license granted hereunder are assignable or transferable by Licensee (and any attempt to do so shall be void); Company may freely assign, delegate, license and/or transfer this Agreement without consent. Subject to the foregoing, the provisions hereof are for the benefit of the parties only and not for any other person or entity.
(b) Notices. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts.
(c) Complete Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to the subject matter. Any pre-printed or standard terms of any purchase order, confirmation, or similar form, unless signed by Company after the effectiveness hereof, shall have no force or effect.
(d) Waiver. Any waiver, either expressed or implied, by either party of any default by the other in the observance and performance of any of the conditions and/or covenants of duties set forth herein shall not constitute or be construed as a waiver of any subsequent or other default.
(e) Headings. The headings to the Sections and Subsections of this Agreement are included merely for convenience of reference and shall not affect the meaning of the language included therein.
(f) Prevailing Party. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
(g) Governing Law; Venue; Jurisdiction.
(i) This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiations, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of California, notwithstanding any choice-of-laws doctrines of such jurisdiction or any other jurisdiction which ordinarily would cause the substantive law of another jurisdiction to apply.
(ii) The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are expressly excluded.
(iii) Licensee agrees Licensee will not commence any action of any kind, whether in law or at equity, whether in contract or tort or otherwise, in any forum other than the courts of the State of California sitting in Orange County, and Licensee irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and irrevocably waives any objection based upon inconvenience of the forum or otherwise to venue laid therein. Licensee agrees that venue and jurisdiction shall be proper only in the State of California.
(h) Read and Understood. Licensee hereby acknowledges that Licensee has read and understands this Agreement and agrees to be bound by its terms.