DevelopFlash LiveArt™ / NewtonIdeas
IMPORTANT:
PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE ACCESSING, INSTALLING OR USING THE SOFTWARE. NEWTONIDEAS AND/ ITS SUBSIDIARIES OR SUCCESSORS SUCH AS RESERVED TRADE MARKS DEVELOPFLASH, FLEXMONSTER AND LIVEART IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERENCED BELOW AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT.
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND NEWTONIDEAS. BY PURCHASING OR OPENING THE LIVEART PACKAGE, BREAKING THE SEAL, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE NOTIFY US BY EMAIL OR OTHERWISE INDICATE REFUSAL, MAKE NO FURTHER ATTEMPTS TO ACCESS OR USE THE SOFTWARE AND CONTACT NEWTONIDEAS CUSTOMER SERVICE FOR INFORMATION ON HOW TO OBTAIN A REFUND OF THE MONEY YOU PAID FOR ACCESS TO THE SOFTWARE (LESS ANY SHIPPING, HANDLING, AND ANY APPLICABLE TAXES).
I UNDERSTAND THAT LICENSE AND MONTHLY FEES ARE NON-REFUNDABLE AFTER 30 DAYS FROM PURCHASE OR 60 DAYS FROM PROJECT DEPLOYMENT AND OFFICIAL LAUNCH.
1. OWNERSHIP:
The software, including any related documentation (collectively the “Software”) is the property of NEWTONIDEAS, or its licensors, and is protected by copyright and/or trade secret law. Nothing in this agreement shall be construed as restricting NEWTONIDEAS’s ability to license, sell, lease, modify, publish, or otherwise distribute the Software, or any portion thereof, to any other person. DEVELOPFLASH, FLEXMONSTER and LIVEART are trademarks of NEWTONIDEAS. This license gives you no authority to use NEWTONIDEAS’s trademarks without its express, prior, written consent. This license merely grants to you the limited right to use the Software as specified herein. Upon termination of this license for any reason, all rights will revert to NEWTONIDEAS (or its licensees), and You will no longer have any rights to use the Software or any portion thereof. You acknowledge NEWTONIDEAS’s ownership of the Software and agree not to challenge the validity or enforceability of any copyrights or trade secrets associated with the Software.
1.1 YOUR WEBSITE
The Software is intended to be used in connection with your website to enable the design of consumer merchandise. You are solely responsible for the content, ownership, and integrity of your website and domain name, as well as any merchandise created via the Software, and NEWTONIDEAS shall have no liability with respect to any claims brought by third parties relating to your website, domain name, or any merchandise created or sold on your website except as expressly stated below.
2. LICENSE:
While NEWTONIDEAS continues to own the Software, NEWTONIDEAS hereby grants You certain non-exclusive rights to access and use the Software after Your acceptance of this license. This License is limited to a single distribution and use of the Software to run on a single website (1-CPU license), located on the Internet at a single domain. This license governs any releases, revisions, or enhancements to the Software that NEWTONIDEAS may furnish to You from time to time.
2.1 YOU MAY:
Except as may be modified by an NEWTONIDEAS SUPPLEMENTAL LICENSE AGREEMENT (each a “License Module”) that accompanies, precedes, or follows this license, Your rights and obligations with respect to the use of this Software are as follows: YOU MAY
A. Access and use the Software for its intended purpose pursuant to your contractual arrangement with NEWTONIDEAS.
B. Use the Software in accordance with any additional permitted uses set forth in a License Module.
2.2 YOU MAY NOT:
Except as may be modified by a “License Module” that accompanies, precedes, or follows this license, Your rights and obligations with respect to the use of this Software are further limited as follows: YOU MAY NOT:
A. Copy, distribute, perform, display, or transmit the software, source code, object code, printed documentation that accompanies the Software, or any portion thereof except as expressly stated;
B. Sublicense, rent, or lease any portion of the Software without prior consent as required herein;
C. Reverse engineer, decompile, disassemble, modify, translate, circumvent any anti-piracy technology or make any attempt to discover the source code of the Software, or create derivative works from the Software;
D. Use a previous version or copy of the Software after You have received a an upgraded version. Upon upgrading the Software, all copies of the prior version must be destroyed;
E. Use a later version of the Software than is provided herewith unless You have otherwise separately acquired the right to use such later version;
F. Use the Software in any manner not authorized by this license;
G. Use the Software in any manner that contradicts any additional restrictions set forth below;
H. Use the software in any manner that violates any law or governmental regulation;
I. Use the software in any manner that violates the rights of any third party;
3. CONTENT UPDATES:
Certain portions of the Software may be updated from time to time at NEWTONIDEAS’s sole discretion (“Content Updates”). You shall have the right to obtain Content Updates for any updates NEWTONIDEAS provides during the term of this License agreement so long as You are current on all applicable license fees, subscription fees, royalties, taxes, etc.. However, NEWTONIDEAS reserves the right to provide certain customization or other content modules by separate paid subscription License Module. NEWTONIDEAS reserves the right to designate specified Content Updates as requiring purchase of a separate subscription at any time and without notice to You. This License does not otherwise permit You to obtain or use Content Updates.
4. SECURITY:
There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that NEWTONIDEAS may use these measures to protect NEWTONIDEAS against software piracy. This Software may contain enforcement technology that limits the ability to access, install or uninstall the Software.
You will hold all passwords in the strictest of confidence. You may not share or disclose any password to any other user or third party other than as specifically provided for herein. If you breach any provision of this section, we shall be entitled to (i) terminate this Agreement immediately, (ii) retain all payments paid pursuant to this Agreement and, (iii) seek any legal or equitable remedies.”
5. LIMITED WARRANTY:
NEWTONIDEAS warrants that (i) it has the right to enter into this Agreement and grant the rights hereunder; (ii) all supportive materials (fonts, images, cliparts) provided hereunder, and used as permitted herein, will not infringe any copyright, trademark, moral right, right of privacy or any other intellectual property right of any third party.
Except as stated above, NEWTONIDEAS does not warrant that the Software will meet Your requirements or that operation of or access to the Software will be uninterrupted or that the Software will be error-free. The software is provided as is and without warranty of any kind.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
THE WARRANTY STATED ABOVE DOES NOT APPLY TO ANY MODIFICATIONS YOU MAKE TO THE SOFTWARE, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS ARISING OUT OF YOUR MODIFICATION.
6. DISCLAIMER OF DAMAGES:
SOME STATES AND COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE BELOW LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL NEWTONIDEAS OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO ACCESS OR USE THE SOFTWARE EVEN IF NEWTONIDEAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL NEWTONIDEAS’S OR ITS LICENSORS’ LIABILITY EXCEED THE LICENSE FEE PAID BY YOU OR YOUR PURCHASE PRICE PAID FOR THE SOFTWARE FOR THE APPLICABLE CALENDAR YEAR. Any claims must be brought within twelve (12) months of the date that you discovered such claim, or reasonably should have discovered such claim, or shall be waived The disclaimers and limitations set forth above will apply regardless of whether You accept the Software.
7. INDEMNITY:
You agree to indemnify, defend, and hold harmless NEWTONIDEAS, its affiliates, parents, subsidiaries, employees, directors, officers, successors, assigns, distributors and anyone else associated with NEWTONIDEAS from and against, any and all claims, liabilities, costs, damages, or expenses, (including attorneys’ fees) asserted against NEWTONIDEAS arising out of Your use of the Software in any manner except as expressly authorized herein or arising out of Your use of the third-party images or materials except as permitted herein or in connection with any breach of any of the terms of this Agreement. The disclaimers of warranties and damages and limitations on liability, and indemnity provisions shall survive termination.
At the indemnifying party’s option, the indemnifying party may assume the handling, settlement or defense of any claim or litigation and the indemnified party shall reasonably cooperate in the defense thereof. The indemnified party shall have the right to participate in the litigation, at its own expense, through counsel selected by the indemnified party. The indemnifying party will not be liable for legal fees or other costs incurred prior to the indemnified party giving notice of the claim for which indemnity is sought.
8. YOUR WARRANTIES:
You represent, warrant and covenant that:
(I) You are at least eighteen years of age and have the full right and authority to enter into this License on behalf of you and/or your company, employer or principal;
(II) You will not use the Software in any way that is not permitted by this License;
(III) Your use of the Software will not violate any applicable law or regulation of any country, state, or other governmental entity;
(IV) The information that you provide under this Agreement is accurate and true, including, without limitation, all credit card or other payment information and you shall update such information as necessary;
(V) If you are acting as an agent, you must inform your client/principal of the terms of this License.
9. TERM & TERMINATION
This License Agreement is effective upon execution and shall continue for a period of one year, such period to automatically renew for successive one year periods until it is terminated.
(I) This License Agreement will terminate automatically, without notice to YOU, if you fail to comply with any provision of this License Agreement.
(II) You can terminate this Agreement by destroying any copies of the Software, any copies of the Image(s), along with any copies or archives, any CD-ROM or accompanying materials (if applicable), and ceasing all use of the Software and Image(s) for any purpose. Such termination may not effect payment obligations.
Upon termination of this Agreement for any reason, you agree to (i) destroy all copies and archives of the Software and Image(s), (ii) cease using the Software and Image(s) for any purpose, and (iii) confirm to in writing that you have complied with these requirements. Your right to use Image(s) shall immediately, and automatically, terminate upon the termination of this Agreement for any reason, provided, however, that after termination you may continue to use any Image(s) incorporated into a product or service during the term in the same product or service in accordance with the terms of this Agreement. Your obligations upon termination shall survive termination along with Sections 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, and 12.
10. ASSIGNMENT
You may assign this Agreement with the prior, express, written consent of NEWTONIDEAS, which shall not be unreasonably withheld; provided that You neither made nor retain any copies of the Software and the transferee agrees to the terms of this License. NEWTONIDEAS may freely assign its rights and obligations under this Agreement. Any assignment permitted herein shall be binding upon and shall inure to the benefit of the assignee party’s heirs, assigns, and successors.
11. CONFIDENTIAL INFORMATION
Each of the parties hereto agrees to keep confidential any and all information with respect to the other party, including without limitation, information relating to data, technology, business, financial affairs, and operations of the other party (“Confidential Information”) which it has received or may in the future receive in connection with this Agreement which is not otherwise available to the general public without restriction. Notwithstanding the foregoing, each of the parties shall be entitled to disclose such Confidential Information (i) to its agents, employees or representatives who have a need to know such Confidential Information for the purpose of performance under this Agreement and exercising the rights granted under this Agreement, or (ii) to the extent required by applicable law, or (iii) during the course of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement provided that the party wishing or required to disclose such Confidential Information shall give the other reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent. Confidential Information shall not include that information defined as Confidential Information above which the receiving party can establish (i) was in the possession of the receiving party at the time of disclosure; (ii) prior to or after the time of disclosure became part of the public domain without the act or omission of the party to whom it was disclosed; (iii) was disclosed to the receiving party by a third party under no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the receiving party without the use of Confidential Information.
The parties expressly agree that Your sales and customer information disclosed to NEWTONIDEAS pursuant to this Agreement shall be deemed Your Confidential Information. NEWTONIDEAS further agrees not to use Your customer information to contact Your customers for purposes of directly competing with you. Nothing in this Agreement, however, prevents NEWTONIDEAS from doing business with Your customers in the event they contact NEWTONIDEAS.
All confidentiality provisions shall survive termination.
12. EXPORT REGULATION:
The Software and its related documentation, including technical data, may not be exported or re-exported in violation of Export Administration Act, its implementing laws and regulations, the laws and regulations of other agencies, or the export and import laws of the jurisdiction in which the Software was obtained. Export to any individual, entity, or country specifically designated by applicable law is strictly prohibited.
13. GENERAL:
This Agreement and any related License Module is the entire agreement between You and NEWTONIDEAS relating to the Software and: (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties.
If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent to make it enforceable, consistent with the parties’ intent.
This Agreement may only be modified by a License Module that references this License or by a written document that has been signed by both You and NEWTONIDEAS.
No action of NEWTONIDEAS, other than an express written, signed waiver may be construed as a waiver of any part of this Agreement, and no employee of NEWTONIDEAS is authorized to make an oral waiver. In the event of any waiver of a specific part of the Agreement, it shall not constitute waiver of any other part.
You have any questions concerning this Agreement, or if You desire to contact NEWTONIDEAS for any reason, please write to: quiller@flexmonster.com.