In
consideration for your use of the software and any updates, customizations
and/or enhancements, entitled photopos.com website, tools and applications ("Software")
provided by Power Of Software Ltd. ("Licensor"), you ("User")
agree to the following terms and conditions. If you do not agree to these terms, you may not use or install the
software and in case you paid for it you must return the package to your point of purchase immediately
for a refund.
1. License
. Licensor hereby grants the User a
non-exclusive, non-transferable license to use the Software for personal use on
one computer by User only.
Licensor reserves the right at any time, without liability or prior
notice, to change the features or characteristics of the Software, this
Agreement, or the Software's documentation and related materials.
2.
License
Restrictions
.
a. User acknowledges that the Software and
its structure, organization, and source code constitute valuable trade secrets
of Licensor. Accordingly, User
agrees not to (i) copy, perform, distribute, modify, adapt, alter, translate,
or create derivative works from the Software; (ii) merge the Software with
other software; (iii) sublicense, lease, rent, or loan the Software to any
third party; (iv) reverse engineer, decompile, disassemble, or otherwise
attempt to derive the source code for the Software; or (v) otherwise use the
Software except as expressly allowed in this Agreement.
b. User shall comply with all applicable
export and import control laws and regulations in its use of the Software and,
in particular, User shall not export or re-export the Software without all
required United States and foreign government licenses. User understands that access and use of
the Software from outside the United States may constitute export of technology
and technical data which may implicate export regulations and/or require export
license.
c. Licensor retains exclusive ownership of
all worldwide copyrights, trade marks, service marks, trade secrets, patent
rights, moral rights, property rights and all other industrial rights in the
Software and documentation, including any derivative works, modification,
updates, or enhancements. All rights in and to the Software not expressly
granted to User in this Agreement are reserved by Licensor. Nothing in this Agreement shall be
deemed to grant, by implication, estoppel or otherwise, a license under any of
Licensor's existing or future patents.
d. If User is an employee, contractor or agent of the
United States Government, the following provision applies. The Software and documentation are
comprised of "commercial computer software" and "commercial
computer software documentation" as such terms are used in 48 C.F.R.
12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or
on behalf of civilian agencies, consistent with the policy set forth in 48
C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the
Department of Defense, consistent with the policies set forth in 48 C.F.R.
227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Unpublished rights reserved
under the copyright laws of the United States.
e. User
shall not use the Software in any way that violates any local, state, federal
or law of other nations, including but not limited to the posting of
information that may violate third party rights, that may defame a third party,
that may be obscene or pornographic, that may harass or assault others, that
may violate hacking or other computer crime regulations, etc. Licensor does not
monitor or edit any transmissions, postings, routings or other materials which
User may send, post, route, transmit or otherwise move through or with the
Software.
f.
Backing
up Files
: This software and all Image Enhancing software in general
perform, on many occasions, changes on picture files in such a way that in many
cases it is not possible to retrieve the original picture after saving it in
the software.
In any case where you wish to edit
pictures and files (especially important pictures and files) in the software,
you must back them up before the editing operations and save them in such a way
that will enable you to reconstruct them, whenever the need arises
.
g.
Working in a
Computer Network:
This software is not suitable
to work in a computer network. It is solely designed to work in the PC
(personal/local computer) environment.
3.
WARRANTY
DISCLAIMER
. THE SOFTWARE IS PROVIDED
"AS IS" WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO
ANY FUNCTIONALITY OR ITS BEING VIRUS FREE. USER RECOGNIZES THAT THE AS IS
CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT,
WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. LICENSOR AND THIRD PARTIES DISCLAIM ALL
WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NONINFRINGEMENT. NO REPRESENTATION
OR OTHER AFFIRMATION OF FACT REGARDING THE SOFTWARE SHALL BE DEEMED A WARRANTY
FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF THIRD PARTIES WHATSOEVER. USER ACKNOWLEDGES THAT HE OR SHE HAS
RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN.
4.
LIMITATION
OF LIABILITY
.
LICENSOR SHALL
NOT BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES,
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF
GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR HAD BEEN ADVISED OF,
KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL LICENSOR'S
AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY USER UNDER THIS
AGREEMENT. USER ACKNOWLEDGES THAT
THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS
AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE
LIMITATIONS ON ITS LIABILITY.
5. Indemnification
. User shall defend, indemnify and hold
harmless Licensor, its officers, directors contractors, agents and employees,
from any and all claims or causes of action arising out of use of or related to
the Software, and pay any and all damages and expenses (including but not
limited to attorneys fees incurred by Licensor and/or third parties) in
connection therewith. Licensor reserves the right, at it own expense, to assume
the exclusive defense and control of any matter otherwise subject to
indemnification by User, in which event User shall cooperate with the Licensor
in asserting any available defenses.
6. Termination
. This Agreement is effective unless
terminated by Licensor at any time for any breach of this Agreement. User may terminate this Agreement at
any time by destroying all copies of the Software in User's possession and
deleting the Software from User's computer system and other storage media, or
by returning all such copies to Licensor.
This Agreement and User's right to use this Software automatically
terminate if User breaches this Agreement.
7.
Legal
Compliance
. Licensor may suspend or terminate use of Software and this Agreement
immediately upon receipt of any notice which alleges that User has used the
Software for any purpose that violates any local, state, federal or law of
other nations, including but not limited to the posting of information that may
violate third party rights, that may defame a third party, that may be obscene
or pornographic, that may harass or assault others, that may violate hacking or
other criminal regulations, etc. of its agents, officers, directors,
contractors or employees. In such
event, Licensor may disclose the User's identity and contact information, if
requested by a government or law enforcement body, or as a result of a subpoena
or other legal action, and Licensor shall not be liable for damages or results
thereof and User agrees not to bring any action or claim against this Licensor
for such disclosure.
8. Miscellaneous
. Either party may assign this Agreement
to any successor in interest who purchases or through change in control owns
greater than fifty percent of the assets or equity of such entity and agrees in
writing to be bound by the terms and conditions herein; any other assignment
shall be void. This Agreement and
any dispute arising hereunder shall be construed in accordance with the laws of
the State of Israel without regard to principles of conflict of
laws. For the purpose of this Agreement, User consents to the personal
jurisdiction and venue of the state and federal courts located in
Tel
Aviv City, Israel.
If any
provision of this Agreement is prohibited by law or held to be unenforceable,
the remaining provisions hereof shall not be affected, and this Agreement shall
continue in full force and effect as if such unenforceable provision had never
constituted a part hereof, and the unenforceable provision shall be
automatically amended to so as to best accomplish the objectives of such
unenforceable provision within the limits of applicable law. This Agreement may
be executed in counterparts, each of which shall be deemed an original but all
of which together shall constitute the same instrument. Any waiver of a provision of this
Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be
interpreted to be a waiver of that obligation in the future or any other
obligation under this Agreement. This Agreement constitutes the entire
agreement between the parties related to the subject matter hereof, supersedes
any prior or contemporaneous agreement between the parties relating to the
Software and shall not be changed except by written agreement signed by an
officer of Licensor.