End user agreement for nice2use photo archival tool
Colour-Science AG n2uSmartClient End User License Agreement
General Terms and Conditions
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS BEFORE INSTALLING THE SOFTWARE. YOU SHOULD INSTALL THE SOFTWARE ONLY AFTER YOU HAVE READ, UNDERSTAND, AND AGREE TO THESE TERMS AND CONDITIONS. BY INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTOOD THEM, AND AGREED TO BE BOUND BY THEM.
1. Introductory Remarks
1.1 These General Terms and Conditions constitute the license agreement between you and the Companies determining the use of the SOFTWARE (the "Agreement").
1.2 These General Terms and Conditions shall form an integral part of each of your use of the software as well as your software.
2.1 Colour-Science AG is a Company with its registered office in CH-8344 Bäretswil, Switzerland.
2.2 eXaNetworks, Inc. is a Company with its registered office in Portland, Oregon.
2.3 Colour-Science AG and eXaNetworks are hereby known as Companies.
2.4 Companies software and associated web sites is herby known as Software. Including any third party software that may be included as part of the Software.
2.5 Photofinishing labs (“Labs”) that have licensed eXaNetworks, Inc.’s software to provide prints and other digital image products on behalf of you are hereby known as Labs.
3. Companies Software
3.1 Companies have the knowledge, the experience and the SOFTWARE to archive and share your digital images, through a simple and automatic application over the Internet or other networks, to anyone you choose.
3.2. Either you or someone you have shared with can order prints to a Lab that will process your digital images.
3.2 Companies will improve and update its SOFTWARE from time to time. Each time you use our SOFTWARE, we may compare it with the latest available version, and automatically update your SOFTWARE version free of charge while the term of your account is in good standing, otherwise the Companies may charge a nominal fee to provide these updates, or because of technical difficulties in supporting older SOFTWARE, your account might be disabled.
3.3 eXaNetworks, Inc. attempts - without any obligation to do so - to keep a reduced quality versions (i.e. thumbnails) of your digital images on its server as long as you have used the software at least once in a 30-day period. If because of technical necessity, we may force a re-synchronization process to occur this may retrieve your thumbnails again.
3.4 eXaNetworks, Inc. is not archiving or preserving a copy of the full quality image on our servers. eXaNetworks, Inc. is not responsible for the loss of such an original. It is your sole responsibility to archive your own images.
3.5 The companies do not include adware, malware, spyware, or other such software as part of its offerings. The companies may include third party software as part of its offering to add features or functionality to the SOFTWARE. All rights and copyrights are reserved for the third party software.
4.1 Companies agree to grant you a revocable, non-exclusive license to use the SOFTWARE enabling you to archive, view, share, and order your digital images while your account is in good standing.
4.2 The SOFTWARE is owned by Companies and is protected by copyright laws and international treaty provisions. No title to intellectual property is being transferred. You may not modify, reverse engineer, decompile or disassemble the SOFTWARE.
4.3 You understand and agree to become a registered customer of Companies while using the SOFTWARE.
4.4 You understand that the Companies can restrict or limit access to the SOFTWARE at anytime.
4.5 This SOFTWARE is not necessarily free, but may be provided free of charge while your account is in good standing.
4.6 The terms of this agreement can be altered at any time without notification.
5. Privacy Statement
5.1 The Companies collects information about you and your account, for example your email address is used as your account name and to let others you share with know who is sharing images with them. The companies also collect information about which IP address you are using, the number of images, albums, and how you use the SOFTWARE. This type of information is used for internal purposes to improve our SOFTWARE.
5.2 The Companies may also collect personally identifiable information about you when you order from a Lab so that the Lab can process your order.
5.3 The Companies do not rent, sell, or share personal information about you with other people or nonaffiliated companies except to provide products or services you've requested.
5.4 The Companies may disclose information about you in the case that the Companies must respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims; Or the Companies believes it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of this agreement, or as otherwise required by law.
5.5 The Companies may use your account information to let you know about special offers, product enhancements or other offers.
5.6 The Companies may update this policy. The Companies will notify you about significant changes in the way we treat personal information by sending a notice to your email address or by placing a prominent notice on our site.
6. Licensee's Obligations
6.1 You agree that you shall use the SOFTWARE exclusively to archive, view, share, and order your digital images to the Labs listed in the "Order Prints" selection of Software’s associated web site.
6.2 You agree to follow the recommendations and guidelines listed in our Frequently Asked Questions (FAQ) page at www.exanetworks.com.
6.3 You hereby confirm that you have good title and are authorized to transfer and print the images that you transmit and to use such images. You agree that you shall indemnify Companies, and/or the Labs printing the images against any and all claims arising out of or in connection with the printing and the transfer of the images.
6.4 You understand that the SOFTWARE uses propriety transfer mechanisms to transfer images to labs and if the SOFTWARE is not able to complete that transfer for any reason your print order may be incomplete or otherwise fail to complete.
6.5 You agree not to use the SOFTWARE for any purposes contrary to applicable laws and public order.
7.1 You agree that you shall be fully and solely liable for the content of the data transmitted using the SOFTWARE. You agree not to use the SOFTWARE for transmitting images of a pornographic nature, or which contain nudity or sexually explicit content, or images which are otherwise against public order. You agree to hold Companies harmless from and against any claims related therewith and to indemnify Companies for any and all damage caused by not complying with this obligation.
7.2 You agree to not use the SOFTWARE to:
a. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
b. harm minors in any way;
c. impersonate any person or entity, including, but not limited to, Companies officials, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
e. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
f. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.
g. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
h. interfere with or disrupt the SOFTWARE or servers or networks connected to the SOFTWARE, or disobey any requirements, procedures, policies or regulations of networks connected to the SOFTWARE;
i. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
j. "stalk" or otherwise harass another; or collect or store personal data about other users.
8. Warranties and Liabilities
8.1 Companies shall make reasonable efforts to ensure that your digital images are transmitted through the SOFTWARE to the Labs of your choice, or any designated Lab, and that you get a warning signal when you intend to transmit images of either poor quality, or when you are uploading is not completed. However, Companies cannot guarantee in any way the performance of your order and shall not be liable for the outcome of your final pictures.
8.2 The SOFTWARE is provided "as is". Neither the Lab nor Companies warrants that the SOFTWARE shall meet all of your requirements or that its operation shall be uninterrupted or error-free. You should therefore carry out appropriate testing of the SOFTWARE before using it. Should the SOFTWARE prove defective, we shall attempt to correct it but Companies do not assume any liability for your costs incurred. Correction of the SOFTWARE shall be your sole remedy and Companies entire liability. In no event shall Companies be liable to you for any damages, including any lost profits, lost earnings or indirect damages such as lost or destroyed data, disruption of planning, claims of third parties, or other special, incidental or consequential damages whatsoever arising out of the use of or inability to use the SOFTWARE or for any other claim by you or by any other party even if an authorized distributor has been advised of the possibility of such damages in any of the foregoing cases.
8.3 Companies cannot warrant the access to and the uninterrupted and/or error-free functioning of the Internet. The Internet is an open network and Companies make reasonable efforts to protect your privacy. However, Companies cannot guarantee the confidentiality of your digital images and that your digital images are kept confidential when being transmitted or those third parties have no access to them and to the information (including but not limited to your credit card numbers) contained in your order.
8.4 To the maximum extent permitted by law, Companies shall not be liable for any damage (including but not limited to direct or consequential damages) incurred by you or any other person or entity or for the alternation, confusion, loss, destruction, theft, or any other form of misuse of the digital images provided by you. The liability of Companies shall be limited to the price payable by you for the pictures that give rise to the claim.
8.5 The warranties set out above constitute the only warranties of Companies with respect to the performance of the SOFTWARE. They are in lieu of all other warranties, written or oral, statutory, expressed or implied, including, without limitation, the warranty of merchantability or fitness for a particular purpose. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
9.1 This Agreement shall be entered into for an indefinite term and can be terminated by either party at any time by informing the other party in writing, including by posting a message on the Internet. Upon termination of this Agreement, you shall immediately erase the SOFTWARE from any carrier on which it is stored or destroy such carrier.
9.2 Companies have the right to update these General Terms & Conditions at any time. You agree that you shall be bound to such new General Terms & Conditions from the point in time when you receive notice of such change.
10. Your Account, Password and Security
10.1 Your email address is your user account designation. It is your responsibility to assign yourself a password. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Companies of any unauthorized use of your password or account or any other breach of security. Companies cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
11. Modifications to Software
The Companies reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the SOFTWARE (or any part thereof) with or without notice. You agree that the Companies shall not be liable to you or to any third party for any modification, suspension or discontinuance of the SOFTWARE.
You agree to indemnify and hold Companies, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the SOFTWARE, your use of the SOFTWARE, your connection to the SOFTWARE, your violation of the Agreement, or your violation of any rights of another.
13. No Resale of Software
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the SOFTWARE (including your account), use of the SOFTWARE, or access to the SOFTWARE
14. Jurisdiction and Applicable Law
14.1 Any and all disputes arising out of or in connection with SOFTWARE and your order(s) and the transfer of your digital images (the "Dispute") shall be submitted to confidential arbitration in Zurich, except that, to the extent you have in any manner violated or threatened to violate the Companies intellectual property rights, Companies may seek injunctive or other appropriate relief in any court in Switzerland or the United States, and you consent to exclusive jurisdiction and venue in such courts.
14.2 These General Terms & Conditions shall be subject to Swiss law.