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Terms & Conditions
END USER LICENSE AGREEMENT FOR IMAGE DESKTOP APPLICATIONS AND ALL OTHER IMAGE HOLDINGS PRODUCTS AND SERVICES. REDISTRIBUTION NOT PERMITTED
1.1 IMPORTANT -- READ CAREFULLY BEFORE USING OUR SOFTWARE: This License Agreement for certain Image Holdings Products and Services ("License Agreement" or "Agreement") is a legal agreement between you (either an individual or an entity) and Image Holdings, a Cayman company, and its suppliers and licensors (collectively "IH" or "Image Holdings") for any Image Holdings software ("Software"), together with websites, other services ("Services"), and photographs, videos, digital media, and other content (collectively "Content") supplied to you over the internet, on CD/DVD, or via other channels, which may include components provided by suppliers and licensors to Image Holdings. The Software may include IIH’s Image Desktop product and Alpha, Beta, trial, pre-release, free, pay and premium versions thereof. You may install as many copies of the Software as you desire. The Services include product upgrades, support and access to Content as described. You may only receive the Services if you are a Service subscriber in good standing with a valid, authorized credit card on file with Image Holdings, or if you are in the trial period of the Services. By clicking on the "Accept" button, installing, copying or otherwise using the Software, you agree to be bound by the terms of this License Agreement.
1.2 THIS DOCUMENT ALSO CONTAINS TERMS AND CONDITIONS GOVERNING THIRD PARTY SOFTWARE YOU MAY CHOOSE TO INSTALL. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND/OR DO NOT INSTALL THE SOFTWARE.
1.4 YOU AGREE THAT YOUR USE OF THE SOFTWARE AND/OR SERVICES ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1.5 ANY THIRD PARTY SOFTWARE, INCLUDING ANY THIRD PARTY’S PLUG-IN, THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY’S LICENSE AGREEMENT, IF AN ELECTRONIC COPY OF SUCH LICENSE AGREEMENT IS INSTALLED ON YOUR COMPUTER UPON INSTALLATION OF THE SOFTWARE. IMAGE HOLDINGS IS NOT RESPONSIBLE FOR ANY THIRD PARTY’S SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE.
GRANT OF LICENSE.
2.1 IH hereby grants to you a non-exclusive license to use the Software and any related documentation ("Documentation") subject to the following terms:
2.2 You may install and use the Software on any number of computers; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software’s proprietary notices.
2.3 You may access and view all Content supplied by us in accordance with the functionality provided by the Software. You may not use or reproduce our Content for any commercial purpose without our express authorization. See Section 8 below for additional intellectual property ownership provisions.
2.4 The Software may include certain plug-in components ("Plug-Ins"), including the ActiveX Control and Java plug-ins. You may only call to or otherwise use such Plug-Ins through the use of IH’s Software applications. Any direct use of Plug-Ins through a non-IH proprietary application, including a custom or user-written application, is prohibited by this Agreement.
2.5 IH may modify this License Agreement with respect to free versions of the Software upon 14 days written notice to you, including notice via the communications features described below.
3.1 You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Software or Documentation. The features of the Software are intended only for use with your properly owned, properly licensed, or public domain Content and content creation tools. You may require a copyright, or other license from a third party to create, copy, download, record or save photographic files for use by this Software or to serve or distribute such files accessed using the Software, if those files to not belong to you.
3.2 You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
3.3 You may only use the Software for your private, non-commercial use. You may not use the Software in any way to provide, or as part of, any commercial service or application. Copies of photographic files that are downloaded or copied using the Software, and which are protected by the copyright laws or related laws of any jurisdiction, are for your own personal use only and may not be distributed to third parties or displayed outside your normal circle of family and social acquaintances.
3.4 You may not use the Software alone or in conjunction with any device, program, or service, in an attempt to circumvent technological measures employed to control access to, or the rights in, a third party’s photograph or other work protected by the copyright laws of any jurisdiction.
3.5 You may not circumvent or attempt to circumvent the security features of the Software by any means.
COPIES OF SOFTWARE AND ENHANCEMENTS.
4.1 If you receive the first copy of the Software electronically and a second copy on physical media (e.g., CD, DVD, etc.), the second copy may be used for archival purposes only and may not be transferred to or used by any other person. This license does not grant you any right to any enhancement or update.
ALPHA RELEASE VERSIONS.
5.1 In the event that the Software is an alpha release version, the terms of this Section shall apply. Your license to use the Software expires 45 days after installation (or such other period as indicated by the Software) and the Software may thereupon cease to function. The Software you are receiving may contain more or less features than the commercial release of the IH Product that IH intends to distribute. While IH intends to distribute a commercial release of the Software, IH reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the alpha release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
BETA RELEASE OR PRE-RELEASE VERSIONS.
6.1 In the event that the Software is a beta release or pre-release version, the terms of this Section shall apply. Your license to use the Software expires 120 days after installation (or such other period as indicated by the Software) and the Software may thereupon cease to function. The Software you are receiving may contain more or less features than the commercial release of the IH Product that IH intends to distribute. While IH intends to distribute a commercial release of the Software, IH reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the beta release or pre-release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
7.1 The Software may configure certain firewall applications such that the user may not be alerted when the Software requests or receives photographic data necessary for display of Content over the internet.
AUTOMATIC COMMUNICATIONS FEATURES.
8.1 The Software consists of interactive Internet applications that perform a variety of communications over the Internet as part of their normal operation. A number of communications features are automatic and are enabled by default. By installing and/or using the Software, you consent to the Software’s communications features. Once you log into the Software, user information including your user id will be sent in communications with IH’s servers. This information is used to access your regular account, premium Content, non-premium Content, services, features, and other personalized services. IH may match the user id to personally identifiable information in order to provide you with products, services, and software that you’re entitled to and to provide you with relevant information. You are responsible for any telecommunications or other connectivity charges incurred through use of the Software.
8.2 AutoUpdate: The software may automatically communicates with IH’s servers on the Internet to check for updates to IH’s and IH partner’s software, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions.
8.3 Title, ownership, rights, and intellectual property rights in and to the Software, Documentation, and Content supplied by IH shall remain in IH and/or its suppliers regardless of the extent to which such Content represents your likeness. The Software, Services, and Content are protected by the copyright laws of the United States and international copyright treaties, and are Copyright © 2009, all rights reserved.
WARRANTIES AND LIABILITIES.
9.1 For the Pay and Premium versions of IH Products, the following terms apply:
9.2 LIMITED WARRANTY. IH warrants that for a period of thirty (30) days from the date of acquisition the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. IH does not warrant however that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. IH also warrants that the media containing the Software, if provided by IH, is free from defects in material and workmanship and will so remain for thirty (30) days from the date you acquire the Software.
9.3 No Other Warranties. NO OTHER WARRANTIES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IH AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH REGARD TO THE SOFTWARE, THE ACCOMPANYING WRITTEN MATERIALS AND ANY ACCOMPANYING HARDWARE. IH shall bear no liability to you whatsoever for any damage or loss to any photographic data that may arise in connection with your use of the Software. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this License Agreement, this warranty shall immediately terminate. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
9.4 Customer Remedies. IH’s sole liability for a breach of this warranty shall be in IH’s sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee, if any, you paid for the Software. Repaired, corrected or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software or if longer for thirty (30) days after the date IH either shipped to you the repaired or replaced Software or advised you as to how to operate the Software so as to achieve the functionality described in the Documentation, whichever is applicable. Only if you inform IH of the problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will IH be obligated to honor this warranty.
LIMITATION OF LIABILITY.
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETHER IN TORT CONTRACT OR OTHERWISE SHALL IH OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF IH SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL IH’S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE LICENSE FEE PAID TO IH FOR THE SOFTWARE AND DOCUMENTATION. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10.2 For the Free, Trial, Pre-Release, Alpha, and Beta versions of IH Products, the Services and the Content, the following terms apply:
DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY.
11.1 THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IH FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IH 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 BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, THE SERVICES OR THE CONTENT, EVEN IF IH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IH’s TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IH DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH IH.
12.1 This Software and the Services are intended for use only with properly licensed Content. It is your responsibility to ascertain whether any copyright or other licenses are necessary and to obtain any such licenses to serve, create, or download such media and Content. You shall hold harmless, indemnify, and defend IH, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claims that you have (i) viewed, downloaded, copied, or transmitted any materials (other than materials provided by IH) in connection with the Software in violation of another party’s rights or in violation of any law, or (ii) violated any terms of this License Agreement. If you are importing the Software from the United States, you shall indemnify and hold IH harmless from and against any import and export duties or other claims arising from such importation.
13.1 This License Agreement will automatically terminate if you fail to comply with any term hereof. No notice shall be required from IH to effect such termination. You may also terminate this License Agreement at any time by notifying IH in writing of termination. Upon any termination of this License Agreement, you shall immediately discontinue use of the Software and shall within three (3) days return to IH, or certify destruction of, all full or partial copies of the Software, documentation and related materials provided by IH. Your obligation to pay accrued charges and fees shall survive any termination of this License Agreement.
14.1 This Agreement is personal to you, and may not be assigned without IH’s express written consent. In the event that you are an entity that merges with another entity or are acquired by another entity during the Term, you shall provide written notice of such merger or acquisition not later than the date on which any public announcement is made. If IH does not consent to assignment of this Agreement to the new or acquiring entity in such merger or acquisition, IH may terminate this Agreement on thirty (30) days’ written notice. Both parties shall perform under this Agreement until such termination is effective.
15.1 Technical support for the Software, as made available by IH, is described at IH’s technical support website: http://support.ourcruisephotos.com/
U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS. U.S. GOVERNMENT RESTRICTED RIGHTS:
16.1 This Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is Image Holdings, P.O. Box 10310 APO, Grand Cayman, Cayman Islands. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Afghanistan (Taliban-controlled areas), Cuba, Iran, Iraq, Libya, North Korea, Serbia (except Kosovo), Sudan and Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls. For more information on the U.S. Export Administration Regulations (EAR), 15 C.F.R. Parts 730-774, and the Bureau of Export Administration ("BXA"), please see the BXA homepage (http://www.bxa.doc.gov).
17.1 Arbitration & Jurisdiction. You and IH agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services, or your use of the Software or Services shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"). The arbitration shall take place in the State of Florida. To the fullest extent permitted by law: no arbitration under this License Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former licensee of IH; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and IH); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and IH). Your arbitration fees and your share of arbitrator compensation will be limited to those set forth in the AAA’s Consumer Rules with the remainder paid by IH. If such costs are determined to be excessive, IH will pay all arbitration fees and arbitrator compensation. You and IH may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award rendered by the arbitrator(s). You and IH hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Florida to enforce the provisions of this Section and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software or Services or your use of the Software or Services. The court, not the arbitrator, shall determine arbitrability and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services or your use of the Software or Services shall be governed by the laws of the State of Florida and the Federal Arbitration Act.
17.2 Complete Agreement. This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by IH or not. The acceptance of any purchase order you place is expressly made conditional on your consent to the terms set forth herein. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of IH. If any provision of this Agreement 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. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.