End user agreement for Filter Forge Professional
FILTER FORGE™ END USER LICENSE AGREEMENT
NOTICE TO USER:
THIS IS A CONTRACT. AT THE END, YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE PRODUCT, AS DEFINED BELOW. BY INSTALLING THIS SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Electronic End User License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity), (the “Licensee”), and Filter Forge, Inc., (the “Licensor”), regarding the software and service titled Filter Forge that you are about to install, access or use; which you downloaded, copied or otherwise obtained through Licensor’s website(s) or other resources or media including without limitation CD or DVD disks, floppy disks, or through a network in object code form via websites, file sharing networks, P2P networks, file archives, FTP servers or other related services; including without limitation a) all of the contents of the files, disk(s) or other media with which this Agreement is provided (the “Software”), b) all subsequent upgrades, revisions, patches, enhancements, fixes, modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Licensor (collectively, the “Updates”) provided that the Updates shall not include new subsequent releases of the Software bearing a new first numeral such as 2.0 or 3.0 (“New Releases”) but include any minor revisions of the Software version indicated by a change in the decimal numeral, such as 2.3 or 2.4, c) third party extension modules that add functionality to the Software (“Filters”) access to which is provided through an online repository of user-created content (the “Filter Library”); and d) related user documentation and explanatory materials or files provided in printed, “online” or electronic form (the “Documentation” and together with the Software, Updates, Filters and Filter Library, the “Product”). You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Licensor, or through any other source. For purposes hereof, “you” or “Licensee” means the individual person installing or using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, “you” means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term “organization,” without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation (“Operating”), you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way.
BEFORE YOU CHOOSE THE “I ACCEPT THIS AGREEMENT” OPTION AND CLICK ON THE “NEXT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR CLICK OF THE “NEXT” BUTTON IS A SYMBOL OF YOUR SIGNATURE AND BY CHOOSING THE “I ACCEPT THIS AGREEMENT” OPTION AND CLICKING ON THE “NEXT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. This Product will not install on your computer unless or until you accept the terms of this Agreement. You may also receive a copy of this Agreement by contacting the Licensor at: www.filterforge.com/contact/.
1. Proprietary Rights and Non-Disclosure.
1.1. Ownership Rights. You agree that the Product, including without limitation the Filters, and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product are proprietary intellectual properties and/or valuable trade secrets of the Licensor or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner’s name. Such use of any trademark does not give you any rights of ownership in that trademark. The Licensor and/or its suppliers and/or licensors own and retain all right, title, and interest in and to the Product, including without limitations the Filters, any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement.
1.2. Source Code. You acknowledge that the source code for the Product is proprietary to the Licensor or its suppliers and/or licensors and constitutes trade secrets of the Licensor or its suppliers and/or licensors. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Product in any way provided however that the above limitation does not apply to Filters and their source code (XML code).
1.3. Confidential Information. You agree that, unless otherwise specifically provided herein, the Product, including the specific design and structure of individual programs and the License Key, constitutes confidential proprietary information of the Licensor or its suppliers and/or licensors, as applicable. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, “License Key” shall mean a file or a unique sequence of digits and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information provided however, that you may make and distribute unlimited copies of the trial version of Product in object code only as long as each copy that you make and distribute contains this Agreement subject to end user’s acceptance before the first use, and the same copyright and other proprietary notices pertaining to the Product that appear in the Product.
1.4. No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product.
2. Grant of License.
2.1. License. The Licensor grants you the non-exclusive and non-transferable license (“License”) to store, load, install, execute, and display (to “Use”) the specified version of the Software, Updates, if any, and Filters obtained through the Filter Library on a specified number of computers, workstations, personal digital assistants, ‘smart phones,’ mobile phones, hand-held devices, or other electronic devices for which the Software was designed (each a “Client Device”) and to use the Documentation supplied therewith solely for the purposes of Using the Product pursuant to the terms and conditions of this Agreement and you hereby agree and accept such License as follows:
a). Beta Version. If you have received, downloaded and/or installed a beta version of the Product, the Licensor grants you the non-exclusive and non-transferable right to Operate the Product on an unlimited number of Client Devices exclusively for non-commercial beta-testing purposes until (i) expiration of the beta testing period, or (ii) your subsequent acceptance of the end user license agreement for any non-beta version of the Product, whichever is earlier.
b). Trial Version. If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Software, you may Operate the Product only for evaluation purposes and only during the single applicable evaluation period of ninety (90) days, unless otherwise indicated, from the date of the first installation of the Software. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited, provided however that, subject to the restrictions contained herein, you may copy and distribute a trial version of the Product as provided in Section 1.3 hereof.
c). Standard License. Unless otherwise specifically provided under valid invoicing, purchase order or licensing terms accepted by Licensor in writing (e.g. trial, beta, or multiple user license as specified in a contemporaneous purchase order or agreement) granted by the Licensor upon registration of the Product (online or otherwise as provided by Licensor), Licensee is granted a non-exclusive and non-transferable license to Operate one (1) copy of the specified major version of the Product by one user account in the operating system (“User”) during the Term of this Agreement on one Client Device provided that if multiple or volume License is purchased, the number of the Client Devices and the number of permitted users shall be as provided and permitted by invoicing terms or applicable terms and conditions set forth on the Licensor’s website www.filterforge.com at the time of purchase of the License. The Licensor reserves all rights not expressly granted herein.
d). Grant of Multiple Licenses. If you have purchased multiple licenses for the Product, as reflected in the License Key granted to you by the Licensor, then the number of multiple licenses and the licensing terms reflected in the License Key shall determine the number of copies of the Product you may have, the permitted uses, and the number of Client Devices on which you may Use the Product.
2.2. Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If you use different versions of the Product or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Client Devices on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Licensor provided that unless the licensing terms and the License Key provides otherwise, each purchased or otherwise obtained license entitles you to install and Use the Product on one (1) Client Device. You may not rent, bundle with other products or materials, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not without Licensor’s written consent.
2.3. Updates. During the Term of this Agreement, you may download or otherwise obtain Updates to the Product when and as the Licensor publishes them on its website(s) or through other services or media. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Product or to entitle you to any New Release. This Agreement does not obligate the Licensor to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superseded by a further Agreement accompanying such Update or modified version of the Product). Certain Updates, including the installation of the Updates to the latest decimal number are required to be installed on the Licensee’s Client Device in order for Licensee to be able to access and use online and other services offered by Licensor.
2.4. Term and Termination. The term of this Agreement (“Term”) shall begin when you download or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the License granted hereunder. The Licensor may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of or an Update or a New Release of the Product and thereby conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Licensor immediately and without notice if you fail to comply with any of your obligations or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product.
2.5. No Rights Upon Termination. Upon termination of this Agreement, you will no longer be authorized to Operate or use the Product in any way.
2.6. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 is material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 2.6 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
3.1. No Transfers. Under no circumstances you shall sell, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Licensor's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction you may transfer your rights under this Agreement permanently to another person or entity, provided that a) you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; b) retain no copies, including backups and copies stored on a Client Device; and c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product and/or Filters. Notwithstanding the foregoing, you may not transfer education, pre-release, or “not for resale” copies of the Product, as such copies are identified in the applicable purchase order or licensing terms. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing service bureau or other arrangement, except to the extent such use is specified in the application price list, invoicing terms, purchase order or product packaging for the Product.
3.2. Prohibitions. Except as otherwise specifically provided for in this Agreement, you may not copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any part of the Product to a human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, (i) you may reverse-engineer the Filters and their source code (XML code) and (ii) reverse-engineering the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Licensor and the Licensor may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Licensor's and its suppliers and/or licensors’ proprietary rights in the Software are protected. You may not modify or create derivative works based upon the Product in whole or in part except that you may create derivative works based on any Filter you obtained from the Filter Library provided that (i) any derivative works are created using the Product, (ii) any derivative works are compatible with the Product, and (iii) you license any such derivative works to the Licensor and the users of Filter Library on the terms and conditions substantially similar to the conditions of use of the original Filter and pursuant to the terms of upload license published on Licensor’s website(s) or included with the Product and further provided that you may distribute such derivative works based on the Filters through means other than the Licensor’s Filter Library if the terms and conditions of such distribution and sublicensing to end users are subject to the terms and conditions of this Agreement. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Licensor. All rights not expressly granted here are reserved by the Licensor and/or its suppliers and licensors, as applicable.
3.3. License Key. You may not give, make available, give away, sell, provide or otherwise transfer your License Key or any copy thereof to a third party. Product’s License Key may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves.
3.4. Restrictions. You may not intercept information packages sent and received by the Software or otherwise reverse-engineer the communication protocols which the Product uses to communicate with its servers. You may not (i) send or attempt to send any fake data packages or any other harmful or malicious data or information to the Licensor’s servers; (ii) attack or disrupt the normal functioning of the Licensor’s servers; and (iii) host any unauthorized servers that provide the server-side functionality of the Filter Library.
3.5. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above.
3.6. No Transfer of Rights. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto.
3.7. Compliance with Law. You agree that in Operating the Product and in using any output or information derived as a result of Operating this Product, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, copyright, export control and obscenity law.
3.8. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Product, the Software may contain and/or install on your computer technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that you have a licensed copy of the Product and/or to prevent reverse-engineering of the Product or any parts thereof. The update of these technological measures may occur through the installation of the Updates. The Updates will not install or may fail to Operate if installed on unlicensed copies of the Product. If you are not using a licensed copy of the Product, you are not allowed to install the Updates. The Licensor will not collect any personally identifiable information from your computer during this process.
4. NO WARRANTY AND DISCLAIMER.
4.1. Limited Warranty. The Licensor warrants that for sixty (60) days from the earlier of i) original purchase of the media (e.g. CDs) on which the Product is contained, or ii) the date the License Key is provided to you by the Licensor, the Product will be free from defects in materials and workmanship and that the Product will perform substantially in accordance with the Documentation or generally conform to the Product’s specifications published by the Licensor, provided that any such warranty, as further described in Section 4.2 and 4.4, SHALL NOT APPLY TO FILTERS. Non-substantial variations of performance from the Documentation do not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO BETA, TRIAL AND EVALUATION VERSIONS, PRE-RELEASE, TRYOUT, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF PRODUCT. To make a warranty claim, you must return the Product to the location where you obtained it along with proof of purchase within such sixty (60) day period from the date on which the license fee was paid for the Product. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
4.2. No Warranty Regarding Filters. FILTERS ARE PROVIDED TO YOU “AS-IS” AND WITHOUT ANY WARRANTY WHATSOEVER.
4.3. Customer Remedies. The Licensor and its suppliers’ entire liability and your exclusive remedy for any breach of the foregoing warranty shall be at the Licensor’s option: (i) return of the purchase price paid for the license, if any, (ii) replacement of the defective media on which the Product is contained, or (iii) correction of the defects, “bugs” or errors within reasonable period of time. You must return the defective media to the Licensor at your expense with a copy of your receipt or other proof of purchase. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period.
4.4. NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY RELATING TO THE PRODUCT AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT AND THE FILTERS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT, THE FILTERS OR CONTENT THEREOF OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT OR THE FILTERS TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT OR THE FILTERS. THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT OR THE FILTERS WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT THEY ARE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
4.5. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN, COMPILED OR PRODUCED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE, SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
5. Notice to U.S. Users.
5.1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” respectively, 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, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
5.2. U.S. Export Restrictions for U.S. Users. If you are a U.S. person or entity or if you are otherwise subject to U.S. laws and regulations, you acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the “Acts”). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By Using the Product, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
6.2. Usage Stats and Your Privacy. The Software contains functionality enabling it to collect information regarding the use of the Filter Library (the “Usage Stats”) and to send it to the Licensor’s servers. The Usage Stats do not contain any personally identifiable information and all information in the Usage Stats is technical or statistical in nature. The Usage Stats information package consists of a) an identifier of your installed copy of the Software; b) a list of recently used Filters sorted by the number of times you used (or “applied”) a particular Filter; c) a list of recently viewed Filters sorted by the total time you spent adjusting the controls of a particular Filter; and d) a list of search terms you used when searching the Filter Library. The Usage Stats are used by the Licensor a) to calculate popularity rankings for Filters in the Filter Library; b) to establish the basis for rewarding the authors of popular Filters; and c) to identify the kinds of filters users wish to see in the Filter Library in order to provide such filters. Furthermore, the Software does not send the Usage Stats to the Licensor’s servers without your permission. The permission is explicitly requested by the Software when the Usage Stats are about to be sent, except when the Software’s configuration is set by you to provide otherwise. The automatic sending of the Usage Stats is turned off by default and is implemented as an opt-in feature, as opposed to opt-out. The Usage Stats are stored in a temporary database on the Licensor’s servers and are erased during the regular Filter Library maintenance procedure. The Licensor reserves the right to retain these data for backup purposes as a part of a full or partial database backup, and will not, except as required by legal process or in connection with the sale of all or substantially all of the assets of the Licensor, transfer, rent, publish, lease, sell or otherwise disclose the Usage Stats to a third party, but the Licensor may publish aggregate information based on the Usage Stats on its website or in other media. If you do not wish to send the Usage Stats to the Licensor’s servers, you shall configure the Software not to send the Usage Stats to the Licensor’s servers. Refer to the Product manual or help files for specific instructions.
7.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. 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 disclaimed and excluded. You agree that this Agreement is to be performed in the Commonwealth of Virginia, United States of America and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the courts in the Commonwealth of Virginia, United States of America, and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Licensor as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
7.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
7.3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and the Licensor and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Licensor and you may limit, modify or change the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 7.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of a competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.
7.4. Contact Information. All issues concerning this Agreement and any other questions regarding the Product or the Licensor shall be addressed to the Licensor through its contact form at www.filterforge.com/contact/.
Copyright © 2006 Filter Forge, Inc. and its licensors. All rights reserved. The Licensor’s trademarks and the Product, including the Software and any accompanying Documentation, are protected by copyright and trademark laws and international copyright and trademark treaties, as well as other intellectual property laws and treaties.