DSLR Focus - END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT ("Agreement") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE) AND DSLR Focus. PLEASE READ THIS AGREEMENT CAREFULLY AND PRINT OUT A COPY FOR YOUR RECORDS. THIS AGREEMENT SUPERSEDES PREVIOUS VERSIONS.
BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING DSLR Focus SOFTWARE YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.
1. SOFTWARE: As used in this Agreement, the term "Software" refers to the DSLRFOCUS software which you have selected to download. The term "Software" also shall include any upgrades, modified versions or updates of the Software made available to you by DSLRFOCUS. The Software is deemed accepted by you upon installation of the Software.
2. GRANT OF LICENSE: Subject to the terms of this Agreement, DSLRFOCUS hereby grants you a perpetual, non-exclusive, non-transferable license to: (i) install the Software, (ii) use the Software for your internal use, and (iii) copy the Software for back-up or archival purposes. Notwithstanding the foregoing, you acknowledge and agree that, depending on the version of Software you select to install, certain restrictions may apply to your use of the Software and certain features of the Software ("Special Features") may be unavailable to you or available subject to certain limitations, as follows:
2.1 FULLY LICENSED VERSIONS: If you select to install a fully licensed version of the Software and pay the applicable license fee, your ability to access the Special Features of the Software on all computers that you own will continue perpetually, subject to the terms of this Agreement.
3. SUBSCRIPTION SERVICES: If you select to download a fully licensed version of the Software (or upgrade to a fully licensed version of the Software if you have previously downloaded or installed a free version of the Software), you may receive Subscription Services as provided in this Section. The term "Subscription Services" includes technical support and such additional services as DSLRFOCUS may, at DSLRFOCUS's discretion, make available to you.
3.1 TECHNICAL SUPPORT: Subject to payment of the applicable license fee, DSLRFOCUS will provide you with technical support, free of charge, for a limited period commencing on your payment of such license fee. You may obtain continued technical support for a specified period of time by paying DSLRFOCUSíS applicable then-current fee for Subscription Services, provided that such option is made available to you. All technical support is provided subject to DSLRFOCUSíS then-current technical support policy, and includes such updates to the Software as DSLRFOCUS may make generally available thereunder from time to time at DSLRFOCUS's sole discretion. In the event you are eligible to receive such updates to the Software, DSLRFOCUS will notify you when such updates are available to be downloaded by you. All updates to the Software shall be governed by this Agreement unless other license terms are provided with the update.
3.2 ADDITIONAL SERVICES: During the time you are eligible to receive technical support, DSLRFOCUS may, at DSLRFOCUS's sole discretion, also make certain additional services available to you. Such additional services will be provided subject to DSLRFOCUS's then-current policies regarding use of such additional services. DSLRFOCUS reserves the right to discontinue any such additional services and/or offer new additional services at any time, without right to refund or set-off.
4. LICENSE RESTRICTIONS: You acknowledge that the foregoing license extends only to your use of the features and functionality of the Software provided with the version you install. You may not: (i) reverse engineer, decompile, or disassemble the Software; (ii) modify, or create derivative works based upon, the Software in whole or in part; (iii) distribute copies of the Software; (iv) remove any proprietary notices or labels on the Software; or (v) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Software. Any use in violation of this Section shall immediately terminate your license to the Software.
5. TITLE: You agree that no title to the intellectual property in the Software or Subscription Services (as defined below) is transferred to you. Title, ownership, rights, and intellectual property rights in and to the Software and Subscription Services shall remain in DSLRFOCUS. The Software and Subscription Services are protected by intellectual property laws of the United States, Australia and other countries and by international treaties.
6. NO WARRANTY:
6.1 GENERAL: The Software and Subscription Services are provided to you at minimal charge. DSLRFOCUS does not guarantee that use of the Software or Subscription Services will be uninterrupted or error-free. DSLRFOCUS does not guarantee that the information accessed by the Software or Subscription Services will be accurate or complete. You acknowledge that performance of the Software and Subscription Services may be affected by any number of factors, including without limitation, technical failure of the Software, the acts or omissions of third parties and other causes reasonably beyond the control of DSLRFOCUS. Certain features of the Software may not be forward-compatible with future versions of the Software and use of such features with future versions of the Software may require purchase of the applicable future version of the Software.
6.2 AS IS SALE: YOU AGREE THAT DSLRFOCUS AND ITS LICENSORS HAVE MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO YOU REGARDING THE SOFTWARE AND SUBSCRIPTION SERVICES AND THAT THE SOFTWARE AND SUBSCRIPTION SERVICES ARE BEING PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND/OR SUBSCRIPTION SERVICES IS WITH YOU. SHOULD THE SOFTWARE AND/OR SUBSCRIPTION SERVICES PROVE DEFECTIVE, YOU (AND NOT DSLRFOCUS, THE RETAILER, OR ANY DISTRIBUTOR) ASSUME THE ENTIRE COST OF ALL NECESSARY REPAIR.
6.3 DISCLAIMER: DSLRFOCUS DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT WITHOUT LIMITATION, (i) THE IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; OR (ii) THAT ANY INFORMATION ACCESSED BY THE SOFTWARE OR SUBSCRIPTION SERVICES WILL BE ACCURATE OR COMPLETE. THIS WARRANTY DISCLAIMER AFFECTS YOUR LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY: IN NO EVENT SHALL DSLRFOCUS OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE SOFTWARE OR SUBSCRIPTION SERVICES OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF DATA, LOSS OF PROFITS OR REVENUE, OR LOSS OF USE OF THE SOFTWARE OR SUBSCRIPTION SERVICES OR OTHER ECONOMIC LOSS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, EVEN IF DSLRFOCUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL DSLRFOCUS's LIABILITY FOR ANY CLAIM, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHERWISE, EXCEED THE FEE PAID BY YOU FOR THE SOFTWARE OR SUBSCRIPTION SERVICE THAT IS THE SUBJECT OF SUCH CLAIM. IF THE RELEVANT SOFTWARE WAS PROVIDED TO YOU AT NO CHARGE YOU AGREE THAT DSLRFOCUS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH ANY OF THE SOFTWARE OR SUBSCRIPTION SERVICES. YOU FURTHER AGREE THAT DSLRFOCUS WILL NOT BE LIABLE FOR ANY DAMAGES THAT YOU MAY SUFFER IN CONNECTION WITH (i) DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR SUBSCRIPTION SERVICES OR (ii) FAILURE IN THE PERFORMANCE OF THE SOFTWARE OR SUBSCRIPTION SERVICES. THE LIMITATIONS IN THIS SECTION ARE COMPREHENSIVE AND ALL EXAMPLES ARE ILLUSTRATIVE AND NOT EXHAUSTIVE. THE LIMITATIONS IN THIS SECTION ARE SEPARATE AND INDEPENDENT OF ANY OTHER REMEDY LIMITATIONS IN THIS AGREEMENT AND SHALL NOT FAIL IF SUCH OTHER LIMITATION ON REMEDY FAILS. THE FEES AND OTHER PROVISIONS IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISKS BETWEEN THE PARTIES. THIS SECTION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
8. TERMINATION: This Agreement shall terminate automatically if you fail to comply with the terms of this Agreement. No notice shall be required from DSLRFOCUS to effect such termination. You may also terminate this Agreement at any time by notifying DSLRFOCUS in writing of termination. Upon any termination of this Agreement, you must uninstall and destroy all copies of the Software.
9.1 SEVERABILITY: In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
9.2 WAIVER: No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different or subsequent breach by either party.
9.3 SURVIVAL: All defined terms and Sections 4 ("License Restrictions"), 5 ("Title"), 6 ("No Warranty"), 7 ("Limitation of Liability"), 8 ("Termination"), and 9 ("Miscellaneous") shall survive any termination of this Agreement.
9.4 COMPLIANCE WITH EXPORT CONTROL LAWS: You acknowledge that Software is subject to the export control laws and regulations of the United States ("U.S.") and agree to abide by those laws and regulations. Under U.S. law, the Software may not be downloaded or otherwise exported, reexported, or transferred to restricted countries, restricted end-users, or for restricted end-uses. The U.S. currently has embargo restrictions against Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. The lists of restricted end-users are maintained on the U.S. Commerce Departmentís Denied Persons List, the Commerce Departmentís Entity List, the Commerce Departmentís List of Unverified Persons, and the U.S. Treasury Departmentís List of Specially Designated Nationals and Blocked Persons. In addition, the Software may not be downloaded or otherwise exported, reexported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production or use of missiles or support of missile projects; and (3) the design, development, production, or use of chemical or biological weapons. By downloading or using the Software, you are agreeing to the foregoing. You are also warranting that you are not (i) located in, or a resident or national of, a restricted country; (ii) on any of the U.S. lists of restricted end-users; or (iii) engaged in any activity related to weapons of mass destruction. You understand that the requirements and restrictions of U.S. law as applicable to you may vary depending on the software downloaded and may change over time, and that, to determine the precise controls applicable to the software, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Foreign Assets Control Regulations.
9.5 U.S. GOVERNMENT RIGHTS: The Software under this Agreement is commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.
9.6 GOVERNING LAW: This Agreement will be governed by the laws of the State of California as they are applied to agreements between California residents entered into and to be performed entirely within Texas. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
9.7 ENTIRE AGREEMENT: You agree that this is the entire agreement between you and DSLRFOCUS, and that it supersedes any prior agreement, whether written or oral, and all other communications between DSLRFOCUS and you relating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only by a writing that is signed by the authorized representatives of both parties.
9.8 RESERVATION OF RIGHTS: All rights not expressly granted in this Agreement are reserved by DSLRFOCUS.
©2002-2004 DSLRFocus. All rights reserved
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