THIS AGREEMENT INCLUDES THE FOLLOWING:
END USER LICENSE AGREEMENT FOR ALL RICHARD ROSENMAN® SOFTWARE PRODUCTS
THIS AGREEMENT BETWEEN YOU AND RICHARD ROSENMAN ADVERTISING & DESIGN INC. (“RICHARD ROSENMAN”) GOVERNS YOUR USE OF ALL RICHARD ROSENMAN® SOFTWARE PRODUCTS.
READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE EITHER REMOVING THE DISK FROM THE PACKAGE OR INSTALLING THE SOFTWARE PRODUCTS. BY INSTALLING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST REFRAIN FROM INSTALLING THE SOFTWARE PRODUCTS AND, IF YOU OBTAINED THE SOFTWARE BY MEANS OF A DISC OR OTHER TANGIBLE MEDIA, PROMPTLY RETURN SUCH DISC, OTHER TANGIBLE MEDIA AND ITS PACKAGE TO RICHARD ROSENMAN WITHOUT USING IT.
The Richard Rosenman software products and software developed by third-party developers (“Third-Party Products”) (collectively, “Richard Rosenman Software Store Product(s)”) made available by Richard Rosenman Advertising & Design Inc. are licensed, not sold, to you. Your license to each Richard Rosenman Software Store Product is subject to your prior acceptance of this Licensed Software End User License Agreement (“Standard EULA”), and you agree that the terms of this Standard EULA will apply to each Richard Rosenman Software Store Product that you license, whether through the Richard Rosenman websites’ download functionality (the “Richard Rosenman Software Store Services”) or that you obtain on disc or other tangible media, unless that Richard Rosenman Software Product is covered by a valid end user license agreement between you and the Software Provider of that Richard Rosenman Software Store Product, in which case the terms of that separate end user license agreement will govern. Your license to any Richard Rosenman Product under this Standard EULA or separate end user license agreement is granted by Richard Rosenman, and your license to any Third-Party Product under this Standard EULA or separate end user license agreement is granted by the Software Provider of that Third-Party Product. Any Richard Rosenman Software Store Product that is subject to the license granted under this Standard EULA is referred to herein as the “Licensed Software”. The Software Provider or Richard Rosenman as applicable (“Licensor”) reserves all rights in and to the Licensed Software not expressly granted to you under this Standard EULA.
The Licensed Software contains proprietary and confidential information representing trade secrets of Richard Rosenman. You shall not use, disclose, nor permit any person to obtain such proprietary information, except to the extent such information is necessary for the normal use of the Software.
a. Scope of License.
This license granted to you for the Licensed Software by Licensor is limited to a nontransferable non-exclusive license to (i) use the Licensed Software on any central processing unit (“computer”) that you own or control and as permitted by the usage rules set forth in the Richard Rosenman Software Store Terms and Conditions (the “Usage Rules”) during the term of this Agreement, and to use the documentation during the term of this Agreement in support of your use of the License Software.
The EULA licenses the software application to one user (a specific person’s name or company name)
The EULA allows the software application to be used on one or all of its supported host applications (i.e . Photoshop, Paint Shop PRO, Gimp).
The EULA allows the software application to be installed on one desktop machine and one notebook/laptop computer.
This license does not allow you to use the Licensed Software on any computer that you do not own or control, and you hereby agree that you may not and will not do (or permit any other person or entity to do) any of the following:
(i) distribute or make the Licensed Software available over a network where it could be used by multiple devices at the same time;
(ii) rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed Software and, if you sell your computer to a third party, you must remove the Licensed Software from the computer before doing so;
(iii) copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Software, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Software);
(iv) make or have made any copies of the Licensed Software, documentation, or any portion thereof, except one copy solely for backup purposes;
(v) sublicense, disclose or transfer any copy of the Licensed Software or the documentation in whole or in part, to any third party
(vi) use the Licensed Software, documentation or any portion thereof after any expiration, termination or cancellation of this Agreement or any license granted hereunder.
(vii) modify, adapt, translate, decompile, reverse engineer, disassemble or otherwise derive a source code for the Licensed Software;
(viii) alter, change or remove any proprietary notices or confidentiality legends placed on or contained in the Licensed Software; or
(ix) use the trademarks contained on or in the Licensed Software except as in accordance with accepted trademark practice.
Any attempt to do any of the items referred to in this paragraph (b) is a violation of the rights of the Licensor and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of this license will govern any upgrades provided by Licensor that replace and/or supplement the original Licensed Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
c. Additional License Restrictions.
The Licensed Software or portions thereof enable you to create, pre-render and flatten images created using the Licensed Software. This license does not allow you to, and you agree that you may not and will not pre-render or flatten images created with the Licensed Software (“pre-rendered elements”) for subsequent sale and/or use to third parties except as otherwise indicated below. Further, this license does not allow you to, and you agree that you may not and will not, sell or resell pre-rendered elements as rendered by the Licensed Software, in any manner that we regard as being in competition with our Licensed Software, or to create a business of offering pre-rendered works or templates (whether offered free or for payment) that are renderings or modifications using our Licensed Software. In this regard, no pre-rendered elements that you have rendered or any work that you have created using the Licensed Software can serve as any sort of stock footage, stock photography, stock templates or stock media, as animated background or editable media files, or otherwise be offered to the public or compete with the Licensed Software, whether offered for free or payment. The exception to the foregoing is the case where you sell a finished, locked work that you have rendered to a single end user.
d. Bulk Licenses (applicable to Licensed Software acquired and used under a Volume License).
Richard Rosenman may from time to time offer some of its Licensed Software for use under a volume license, which volume license shall authorize the volume license holder to simultaneously use the Licensed Software on more than a single computer, up to the number of simultaneous users identified in the specific volume license (such license being a “Volume License”). In addition to the other terms Richard Rosenman may impose on a Volume License, all Volume Licenses shall be subject to the Usage Rules and this Agreement, provided however, that under a Volume License, the Licensed Software may be simultaneously used by up to the number of users identified in the applicable Volume License.
e. Consent to Use of Data.
You agree that Licensor may collect and use technical data and related information—including but not limited to technical information and statistics about your computer, system and application software, and peripherals—that is gathered periodically in the background by the Licensed Software in an anonymous manner to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Software and to enable Licensor to understand which parts of the Licensed Software are used most, the frequency of use of the various parts of the Licensed Software and which parts may not be functioning as expected. Licensor may use this information, as long as it is in a form that does not personally identify you, to monitor the performance of its products, improve its products, to provide services or technologies to you and to determine and allocate financial payments Richard Rosenman may owe to another party for Third Party Products or to any Licensor in regard to the use of the Licensed Software.
f. Subscription Fees (applicable to Licensed Software requiring or utilizing subscription services):
Certain functionalities or portions of the Licensed Software may require you to purchase a subscription or membership in order to access all or part of such Licensed Software functionality (such payment(s) being a “Subscription Fee”). Subscription Fees are non-refundable, except as expressly stated otherwise in the Usage Rules and other policies of Richard Rosenman, as may be amended from time to time and as available on the Richard Rosenman website. Subscription Fees are subject to change at the end of any applicable subscription period.
g. Taxes and Other Charges.
You are responsible for paying all taxes levied in connection with the fees, including without limitation Subscription Fees, associated with your use of any Richard Rosenman Software Store Products or Licensed Software. Your credit card company, bank or other financial institution may impose on you other fees, such as foreign exchange fees, in connection with your payment of the fees, including Subscription Fees, applicable to the Richard Rosenman Software Store Products and Licensed Software. Richard Rosenman has no connection to or responsibility for any third party fees. You agree that, in the event Richard Rosenman is unable to collect any fee owed by you for the Licensed Software, Richard Rosenman may take the steps it deems necessary to collect such Subscription Fees from you and that you will be responsible for all costs and expenses incurred by Richard Rosenman in connection with such collection activity.
The license is effective until terminated by you or Licensor. Your rights under this license will terminate automatically without notice from the Licensor if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Licensed Software and destroy all copies, full or partial, of the Licensed Software.
i. External Services. Third-Party Materials.
The Licensed Software may enable access to Licensor’s and/or third-party services and websites (collectively and individually, “External Services”). Use of the External Services requires Internet access and use of certain External Services requires you to accept additional terms. By using this software in connection with an Richard Rosenman Software Store account, you agree to the latest Richard Rosenman Software Store Terms and Conditions and Usage Rules, which you may access and review at http://www.richardrosenman.com/terms-and-conditions/.
You understand that by using any of the External Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the External Services at your sole risk and that neither the Licensor nor its agents shall have any liability to you for content that may be found to be offensive, indecent, or objectionable.
Certain External Services may display, include or make available content, data, information, software or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the External Services, you acknowledge and agree that neither the Licensor nor its agents is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Neither the Licensor nor its agents warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. You agree that the External Services contain proprietary content, information and material that is owned by Licensor and/or its agents or licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External Services or in any manner that is inconsistent with the terms of this Standard EULA or that infringes any intellectual property rights of a third party or Richard Rosenman. No portion of the External Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services, in any manner, and you shall not exploit the External Services in any unauthorized way whatsoever, including but not limited to, using the External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither Licensor nor its agents is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the External Services. To the extent you choose to use or access such External Services and Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such External Services. Licensor may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
j. LIMITED WARRANTY.
THE LICENSED SOFTWARE PRODUCT IS WARRANTED FOR A PERIOD OF NINETY (90) DAYS AFTER YOUR RECEIPT OF THE LICENSED SOFTWARE TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AND TO CONFORM TO RICHARD ROSENMAN’S SPECIFICATIONS. YOUR SOLE AND EXCLUSIVE REMEDY, AND RICHARD ROSENMAN’S SOLE LIABILITY SHALL BE THAT RICHARD ROSENMAN SOFTWARE WILL EITHER (A) PERMIT A RE-DOWNLOAD OF THE LICENSED SOFTWARE IF ORIGINALLY DELIVERED BY MEANS OF A DOWNLOAD, OR (B) IF DELIVERED VIA COMPACT DISC OR OTHER TANGIBLE MEDIA, REPLACE ANY SUCH COMPACT DISC(S) OR OTHER MEDIA NOT MEETING RICHARD ROSENMAN’S SPECIFICATIONS. YOU MUST REPORT ALL DEFECTS AND RETURN THE SOFTWARE TO RICHARD ROSENMAN WITHIN NINETY DAYS FOLLOWING THE DATE YOU RECEIVED THE LICENSED SOFTWARE PRODUCT.
k. NO OTHER WARRANTY:
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OTHER THAN THE WARRANTY EXPRESSLY SET FORTH IN PARAGRAPH (f) ABOVE WITH RESPECT TO THE LICENSED SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED SOFTWARE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED SOFTWARE OR SERVICES WILL BE CORRECTED. RICHARD ROSENMAN DOES NOT AND CANNOT WARRANT THE RESULTS YOU OBTAIN BY USING THE LICENSED SOFTWARE OR DOCUMENTATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. YOU ASSUME THE ENTIRE LIABILITY FOR THE SELECTION AND USE FOR THE LICENSED SOFTWARE PRODUCT AND DOCUMENTATION, AND RICHARD ROSENMAN SHALL HAVE NO LIABILITIES FOR ANY ERRORS, MALFUNCTIONS, DEFECTS OR LOSS OF DATA FROM OR RELATING TO THE USE OF THE LICENSED SOFTWARE AND/OR DOCUMENTATION. Richard Rosenman is not responsible for problems which may occur as a result of any incompatibility between the Licensed Software and any other software or hardware. You assume responsibility for the selection of the Licensed Software to achieve your intended purposes, for making backups of your data regularly, and for choosing, maintaining and matching your hardware, operating system software and other application software. Richard Rosenman cannot guarantee you uninterrupted service or the correction of any errors. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. In that event, any implied warranties are limited in duration to ninety (90) days from the date of delivery of the software. This warranty gives you specific legal rights, and you may have other rights which vary from jurisdiction to jurisdiction.
l. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You may not use or otherwise export or re-export the Licensed Software except as authorized by Canadian / United States law and the laws of the jurisdiction in which the Licensed Software was obtained. In particular, but without limitation, the Licensed Software may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by Canadian / United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
n. Government Licensees.
The Licensed Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the Canada and the United States.
o. Governing Law.
The laws of the province of Ontario, excluding its conflicts of law rules, govern this license and your use of the Licensed Software without regard to that state’s conflicts of laws principles. Your use of the Licensed Software may also be subject to other local, state, national, or international laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You agree to the personal jurisdiction by and venue in the state and federal courts in Washington County, Oregon, and waive any objection to such jurisdiction or venue. The preceding provision regarding venue does not apply if you are a consumer based in the European Union. If you are a consumer based in the European Union, you may make a claim in the courts of the country where you reside. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Richard Rosenman and you arising out of or in connection with your use of the Licensed Software, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
p. Term of License and Agreement.
The term of the license granted by this Agreement, and the term of this Agreement granted to you pursuant to paragraph a shall commence upon your downloading the Licensed Software Product or opening of any package in which the Licensed Software Product was delivered to you. The license and all obligations of Richard Rosenman shall terminate upon your discontinuing the use of the Licensed Software unless earlier terminated by Richard Rosenman in accordance with paragraph m. All of your obligations under this Agreement and the rights of Richard Rosenman under this Agreement shall survive any termination of the license for the longest time permitted by law.
q. Termination and Cancellation. This Agreement and the license granted by this Agreement may be terminated and/or canceled by Richard Rosenman in the event you are in breach of any provision of this Agreement.
(i) This Agreement is the complete agreement and understanding of the parties with respect to the Software and documentation and supersedes all prior oral, written and other representations and agreements concerning such subject matter. This Agreement may only be amended by the express written consent of Richard Rosenman.
(ii) Title in and to the Licensed Software and documentation remains exclusively in Richard Rosenman , subject to express, limited and non-exclusive license granted to you pursuant to paragraph a.
(iii) Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction.
(iv) If any provision of this Agreement is determined to be invalid or unenforceable that provision shall be deemed severed from the remainder of this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
From time to time, Richard Rosenman may, in its sole discretion, advise you of updates, upgrades, enhancements or improvements to the Licensed Software and/or new releases of the Licensed Software (collectively, “Enhancements”), and may license you to use such Enhancements upon payment of prices as may be established by Richard Rosenman from time to time. All such Enhancements to the Software provided to you shall also be governed by the terms of this License Agreement. IN ORDER FOR YOU TO BE ASSURED THAT YOU WILL BE ADVISED OF AND LICENSED TO USE ANY ENHANCEMENTS TO THE SOFTWARE, YOU MUST COMPLETE THE REGISTRATION PROCEDURES SPECIFIED BY RICHARD ROSENMAN FROM TIME TO TIME.