License Agreement

The following license agreement is provided as a reference. Upon purchasing and installing this product, you will be presented with the license agreement for the product.

This Photodex Product License Agreement ("Agreement") is entered into between Photodex Corporation ("Photodex") and ("LICENSEE"), in connection with LICENSEE's use of Photodex's proprietary presentation software.

THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN LICENSEE AND PHOTODEX. BY INSTALLING THE SOFTWARE, YOU, ON BEHALF OF LICENSEE, AGREE AND ARE SUBJECT TO THE LICENSE TERMS SET FORTH BELOW AND ARE INDICATING THAT LICENSEE IS DOMICILED IN THE UNITED STATES, AND THAT THE PARTY ENTERING INTO THIS AGREEMENT ON BEHALF OF LICENSEE IS 18 YEARS OLD OR OLDER. you represent and warrant that you have the legal authority to bind any organization that is to be the licensee hereunder. IF LICENSEE DOES NOT AGREE WITH ANY OF THIS AGREEMENT, DO NOT INSTALL THIS SOFTWARE, DELETE IT FROM ALL OF LICENSEE'S COMPUTER EQUIPMENT, AND RETURN ANY COPIES SHIPPED TO LICENSEE.

Photodex and LICENSEE agree as follows:

1. GRANT OF LICENSE:

Photodex and its content providers own all intellectual property in the software, images and music contained in the licensed product (collectively, the "Software"). The Software is licensed, not sold. Photodex permits Licensee to copy, download, use, modify, distribute, or otherwise benefit from the intellectual property of the Software only in accordance with the terms of this Agreement. The Software includes all of the content on the licensed product, including but not limited to, stock photographs, music, images, illustrations, other artistic works, any related explanatory materials or files, and any updated or modified versions and copies of such information provided to Licensee by Photodex at any time, to the extent not provided under a separate agreement.

Photodex grants Licensee a non-exclusive, non-transferable, worldwide, perpetual right to copy, reproduce, transmit, distribute and display the Software an unlimited number of times in any and all media, whether now known or hereinafter devised, solely for the uses set forth in Section 2 of this Agreement. LICENSEE's license to operate the licensed Software will remain in full force and effect until the occurrence of any termination event under Section 12.

Any use not specifically included in this Agreement shall be considered to be outside the terms of this Agreement.

2. PERMITTED USES:

This license allows LICENSEE the right to use the Software and any musical compositions included therein as set forth below:

1. Photos/Presentations: LICENSEE may use the Software in connection with the production of event presentations for clients, corporate presentations, portfolio presentations, video clips, flash animation, slide show presentations, and promotional presentations, on any storage medium now known or hereinafter devised (not exceeding 5000 units or copies per event or presentation); and
2. Website: LICENSEE may use the Software in connection with LICENSEE's personal or commercial website, but may only use the music contained in the Software together with images, text, or other visual/audio content, in such a way that the music is used in a supporting/secondary role, and is not the main feature of the presentation. Music may be streamed but shall not be made available for download. There shall be no restriction on the number of copies when distribution of the presentation or video made utilizing the Software is made via the Internet.
3. Editing: LICENSEE may edit and/or loop each song contained in the Software to extend/trim its length for creative, technical, or timing purposes.


3. RESTRICTIONS:

LICENSEE shall be restricted in his or her use of the Software as follows:

1. No Modification or Alteration: LICENSEE may not (i) decompile, disassemble, or otherwise reverse engineer (except as otherwise required by copyright law) or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods, underlying ideas, or file formats of the Software, for any purpose, (ii) remove any identification markings, including but not limited to copyright notices and trademarks, from the Software, or (iii) make any modification, enhancement, or Derivative Work of the Software, or incorporate the Software, or any portion thereof, into or with any other software. A "Derivative Work" means a work that is based on one or more preexisting works, such as a revision, enhancement, modification, translation, abridgment, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.
2. No Transfer: LICENSEE may not copy, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Software.
3. Background Use Only: The license does not include the right to use the music contained in the Software as a solo performance –the music may only be synchronized by utilizing the Software and may only be used as background or accompaniment to video and photographic presentations that are created through use of the Software.
4. Sampling / Re-Recording: LICENSEE may not use samples or edits of music in the Software within another musical composition or add a singer/rapper to an existing instrumental track. LICENSEE may, however, use the track as a background ‘bed' under a separate voiceover (spoken, non-singing/non-rapping) performance.
5. Copyright: All rights, title, and copyrights in and to the Software (including, but not limited to, images, photographs, music, and lyrics) remain, as between Photodex and LICENSEE, the property of LICENSEE.
6. Broadcast Restrictions: LICENSEE may not include the music contained in the Software in commercial advertising on television, cable or satellite television, film, or radio, or within any television or film production.
7. Reservation of Rights: All rights not expressly granted are reserved by Photodex.


4. NO ADDITIONAL LICENSE: Licensee acknowledges that Photodex has, and will from time to time create, other computer software programs that may be based upon or related to the Software and that those other programs are not licensed to Licensee under this Agreement.


5. SUPPORT: Licensee acknowledges that Photodex has no responsibility for providing Licensee with any services, support, product upgrades or other enhancements for or in connection with, and that Photodex is under no obligation to create any product upgrades or enhancements to, the Software.


6. COPY PROTECTION: Licensee's use of the licensed Software is subject to any license protection methods used by Photodex. Licensee agrees not to take or cooperate in any effort to defeat or avoid the license protection methods that Photodex uses for the Software.


7. OWNERSHIP:
1. Licensee acknowledges that Photodex is the owner of all Intellectual Property Rights associated with the Software and except as set forth in this Agreement, Photodex does not grant any rights to or ownership of the Software to Licensee. Licensee further acknowledges that Photodex retains all right, title and interest in the Software and Documentation and in all improvements, enhancements, modifications and Derivative Works of the Software including all rights to patent, copyright, trade secret and trademark, regardless of the identity of the creating party. "Intellectual Property Rights" means all intellectual property rights protected by law throughout the world, including all copyrights, copyright registrations and applications, trademark rights (including trade dress), trademark registrations and applications, patent rights (including the right to apply therefor), patent applications (including the right to claim priority under applicable international conventions) and all patents issuing thereon, industrial property rights, inventions (whether or not patentable), together with all utility and design, know-how, specifications, trade names, mask-work rights, trade secrets, moral rights, author's rights, algorithms, rights in packaging, goodwill, and other intellectual and industrial property rights, as may exist now and hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
2. Licensee agrees that all trademark and intellectual property notices for the Software will be preserved unmodified. Licensee further agrees to take all reasonable steps to ensure that unauthorized persons will not have access to any of the Software and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Software except to the extent permitted under this Agreement.
3. Licensee shall instruct its employees and agents that making unauthorized copies of the Software or Documentation or any portion thereof, or permitting use of the Software and/or Documentation other than in accordance with the terms of this Agreement, constitutes a violation of copyright law and of this Agreement. If any such employee or agent subsequently makes an unauthorized copy of the Software and/or Documentation or any portion thereof, Licensee shall pay to Photodex the full price for each unauthorized copy, based on Photodex's then current standard rates. "Documentation" means documentation that describes the function and use of each program in sufficient detail to permit use of the Software.
4. Licensee agrees not to challenge, directly or indirectly, any right or interest of Photodex in the Software and any improvements, enhancements, modifications and Derivative Works of the Software nor the validity or enforceability of Photodex's rights under applicable law. Licensee agrees not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, the Software or any improvements, enhancements, modifications and Derivative Works of the Software or to take any other action which may adversely affect Photodex's rights or interest in the Software and any improvements, enhancements, modifications and Derivative Works of the Software in any jurisdiction.
5. Licensee agrees to notify Photodex immediately and in writing of all circumstances, of which Licensee is aware, surrounding the unauthorized possession or use of the Software by any person or entity. Licensee agrees to cooperate fully with Photodex, at Photodex's expense, in any litigation relating to or arising from such unauthorized possession or use.
6. Licensee acknowledges that, in the event of a breach of its obligations under this Section 7, Photodex may (a) immediately terminate this Agreement, without any liability to Licensee; (b) bring an appropriate legal action to enjoin any such breach of this Agreement without the need to obtain a bond or other security; and (c) recover from Licensee reasonable attorneys' fees and costs in addition to other appropriate relief.


8. WARRANTIES AND DISCLAIMERS:
1. Photodex does not warrant that the Software will be error-free in all circumstances. Photodex warrants to Licensee that, on the date of Licensee's initial use of the Software and for a period ending thirty (30) days following that date (the "warranty period"), the licensed Software will perform substantially in accordance with the published specifications and Documentation. In the event of any defect or error covered by such warranty, Licensee agrees to provide Photodex with sufficient detail to allow Photodex to reproduce the defect or error. If notified in writing by Licensee during the warranty period, Photodex will, at its sole option, either (a) correct such error or defect in the Software, at no cost to Licensee and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass, or (b) accept return of the Software and Documentation and refund any license fees previously paid by Licensee. Photodex is not responsible for any defect or error not reported during the warranty period nor any defect or error caused by a program Licensee has modified, misused or damaged.
2. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, OR SATISFACTORY QUALITY REGARDLESS OF WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OR OTHERWISE.


9. LIMITATION OF LIABILITY: Notwithstanding any provision in this Agreement to the contrary, neither party will be responsible for nor will bear any liability for any damages arising from any use of the Software, or any stoppages, slowdowns, performance problems or other problems that are the result of the Internet or LICENSEE'S computer hardware or equipment. IN NO EVENT WILL EITHER PARTY BE LIABLE OR OBLIGATED UNDER THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO PHOTODEX, OR (B) FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND. licensee MAY NOT BRING ANY CLAIM OR ACTION, REGARDLESS OF THE FORM THEREOF, ARISING FROM OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, MORE THAN ONE (1) YEAR AFTER THE DATE OF THE EVENT FROM WHICH THE CLAIM OR ACTION ARISES OR ACCRUES.


10. TRADEMARKS: Licensee acknowledges Photodex's ownership of the trademark(s) in and to the Software names, and all related trademarks and service marks. Except as set forth in this Agreement, Licensee further acknowledges that it will acquire no interest or goodwill in such trademarks and service marks by virtue of this Agreement or the performance by Licensee of its duties and obligations under this Agreement. Licensee agrees not to use the name of the Software or Photodex's trademarks or service marks (or any confusingly similar names or symbols), in whole or in part, as part of Licensee's business or trade name.


11. EXPORT: Licensee agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Software, or any technical information about the Software or Documentation, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States government approval, unless the appropriate export license or approval has been obtained.


12. TERMINATION:
1. The license to operate the Software will terminate on the occurrence of any of the following:
1. Licensee returns the unopened Software and Photodex, at its sole discretion, accepts the return or Licensee returns the Software, certifies that it has destroyed, uninstalled and rendered unusable all Software, any backup or archival copy of the Software and Photodex, at its sole discretion, accepts the return and certification; or
2. the Software is lost or stolen; or
3. Licensee attempts to transfer this Agreement (or any rights or licenses under this Agreement) to any third party, whether by way of assignment, merger, consolidation, amalgamation, or otherwise, without the prior written approval of Photodex; or
4. Licensee fails to comply with the material terms of this Agreement.
2. If the license or this Agreement is terminated, Licensee will not be entitled to a refund of any license fee or a credit against or relief from any sum owed by Licensee to Photodex.


13. GENERAL PROVISIONS:
1. This Agreement does not create any relationship of association, partnership, joint venture or agency between the parties. Neither party will have any right or authority to assume, create or incur any liability or obligation of any kind against or in the name of the other party.
2. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter of this Agreement. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between Photodex and Licensee with respect to the contents of this Agreement.
3. Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement, including this Section 13.c. must be in writing and bear the signature of the duly authorized representative of each party.
4. Licensee agrees to pay all taxes related to this Agreement's Software license. Such taxes may include, without limitation, any sales, use, consumption, withholding or governmental fees, other than taxes based on Photodex's net income or capital structure. This requirement applies regardless of whether the taxes are imposed by a federal, state, provincial, or local governmental authority. This requirement applies throughout the Agreement term and after the license termination. This requirement includes taxes imposed retroactively by a taxing authority, less any taxes that Photodex collected from Licensee at the time of purchase. In no event will Photodex be responsible for determining whether any tax is due by Licensee.
5. The failure of either party to exercise any right granted under this Agreement, or to require the performance by the other party of any provision of this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.
6. Licensee may not sell, assign or transfer any of its rights, duties or obligations under this Agreement without the prior written consent of Photodex. Either party may assign or transfer this Agreement or any of its rights, duties and obligations to any Affiliate of such party, or pursuant to the sale of all or substantially all of its assets. An "Affiliate" means any corporation, partnership, joint venture, or other entity (1) as to which LICENSEE owns or controls, directly or indirectly, stock or other interest representing more than twenty-five percent (25%) of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (2) if a partnership, as to which Licensee or another Affiliate is a general partner; (3) to which Licensee provides substantial management services under contract; or (4) that Licensee otherwise is in common control with, controlled by, or controls in matters of management and operations.
7. The parties agree that no person or entity who is not a party to this Agreement will be deemed to be a third-party beneficiary or entitled to any rights under this Agreement.
8. All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given to a party if delivered personally or mailed by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery by a nationally-recognized courier, to the address for such party set forth above or to such other address or person as either party may from time to time designate to the other in writing. Any such notice or other communication shall be deemed to be given as of the date it is personally delivered, five (5) days after its being deposited in the United States mail, or one (1) day after being deposited with a nationally-recognized courier for overnight delivery.
9. Except for failure to make payments when due, neither party hereto will be liable to the other by reason of any failure in performances of this Agreement if the failure arises out of the unavailability of third-party communication facilities or energy sources, acts of God, acts of the other party hereto, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorist threats or attacks, war, failure of the Internet, failure or error of any Internet access provider, failure or impairment of any lines of transmission belonging to any third party, or failure or impairment of any third-party server, router, other equipment or software through which Internet transmissions occur, or any cause beyond the reasonable control of that party.
10. If any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision will to such extent as it is determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement will otherwise remain in full force and effect. Furthermore, it is the intention of the parties that in lieu of such illegal, invalid, or unenforceable provision, there automatically be added as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
11. In the event a dispute arises under this Agreement, the prevailing party will be entitled to all reasonable costs and expenses incurred by it in connection with such dispute (including, without limitation, all reasonable attorney's fees and costs incurred before and at any trial, arbitration or other proceeding), as well as all other relief granted in any suit or other proceeding.
12. This Agreement is performable in Travis County, Texas. Licensee agrees that, during and after this Agreement, any lawsuit or other legal proceeding between the parties (including Affiliates, agents, employees, officers, directors, shareholders, contractors, suppliers and licensors) shall be brought only in the Civil District Courts of Travis County, Texas, or the United States District Court for the Western District of Texas, Austin Division. The parties hereby consent to the personal and exclusive jurisdiction and venue of said court.
13. This Agreement, the entire relationship of the parties hereto, as well as any claim by a party against another party, whether grounded in tort, contract, law or equity, shall be governed by, construed and enforced in accordance with the laws of the State of Texas, without regard to its choice of law principles. The United Nations Convention on the International Sale of Goods is expressly disclaimed. The sole and official language of this Agreement is English.