Software License
Agreement
NOTICE TO USER: PLEASE READ THIS
AGREEMENT CAREFULLY. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE
SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE
THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED
THE SOFTWARE AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT, DO NOT USE THE SOFTWARE.
You may have another written
agreement directly with FineArt that supplements or
supersedes all or portions of this agreement.
FineArt own all intellectual
property in the Software. The Software is licensed, not sold. FineArt permits you to copy, download, install, use, or
otherwise benefit from the functionality or intellectual property of the
Software only in accordance with the terms of this agreement. Use of some third
party materials included in the Software may be subject to other terms and
conditions typically found in a separate license agreement or "Read
Me" file located near such materials.
THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER
TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED COPYING. THE ACTIVATION TECHNOLOGY
MAY PREVENT YOUR USE OF THE SOFTWARE IF YOU DO NOT FOLLOW THE ACTIVATION
PROCESS DESCRIBED IN THE SOFTWARE AND DOCUMENTATION.
Definitions.
"FineArt" means FineArt Technology Co., Ltd., a corporation organized and
existing under the laws of
"Designated Products" means a USB
which can be used to store information and is compatible with FineArt's Software.
"Permitted Number" means
one (1) unless otherwise indicated under a valid license granted by FineArt.
"Software" means all of
the information with which this agreement is provided, including but not
limited to (i) FineArt or
third party software files and other computer information; (ii) sample and
stock photographs, images, sounds, clip art and other artistic works
("Stock Files"); (iii) related explanatory written materials
and files ("Documentation"); and (iv) fonts.
2. Software License.
As long as you obtained the Software
from FineArt or one of its authorized licensees and
as long as you comply with the terms of this agreement, FineArt
grants you a non-exclusive license to use the Software in the manner and for
the purposes described in the Documentation, as further set forth below. See
Section 13 for specific provisions related to certain components.
2.1 General
Use. You may install and use one copy of the Software on up to the Permitted
Number of your compatible Designated Products.
3. Intellectual Property
Ownership.
The Software and any authorized
copies that you make are the intellectual property of and are owned by FineArt Technology Co., Ltd. The structure, organization
and code of the Software are the valuable trade secrets and confidential
information of FineArt. The Software is protected by
law, including but not limited to the copyright laws of the
4. Restrictions.
4.1 Notices.
You may not copy the Software except as set forth in Section 2 and 13. Any
permitted copy of the Software that you make must contain the same copyright
and other proprietary notices that appear on or in the Software.
4.2 No
Modifications. You may not modify, adapt or translate the Software. You may not
reverse engineer, decompile, disassemble or otherwise attempt to discover the
source code of the Software except to the extent you may be expressly permitted
under applicable law to decompile only in order to achieve interoperability
with the Software.
4.3 No
Unbundling. The Software may include various applications, utilities and
components, may support multiple platforms and languages and may be provided to
you on multiple media or in multiple copies. Nonetheless, the Software is
designed and provided to you as a single product to be used as a single product
on Computers as permitted by Sections 2 and 13. You are not required to use all
component parts of the Software, but you may not unbundle
the component parts of the Software for use on different Computers. You may not
unbundle or repackage the Software for distribution,
transfer or resale. See Section 13 for specific exceptions to this Section.
4.4 No
Transfer. YOU MAY NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN OR TRANSFER YOUR
RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED
ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY'S COMPUTER EXCEPT AS MAY BE PERMITTED
HEREIN. You may, however, transfer all your rights to use the Software to
another individual or legal entity provided that: (a) you also transfer (i) this agreement, (ii) the serial number(s), the Software
and all other software or hardware bundled, packaged or pre-installed with the
Software, including all copies, upgrades, updates and prior versions; (b)
you retain no upgrades, updates or copies, including backups and copies stored
on a computer; and (c) the receiving party accepts the terms and conditions of
this agreement and any other terms and conditions under which you purchased a
valid license to the Software. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT
TRANSFER EDUCATION, PRE-RELEASE, OR NOT FOR RESALE COPIES OF THE SOFTWARE.
Prior to a transfer FineArt may require that you and
the receiving party confirm in writing your compliance with this agreement,
provide FineArt with information about yourselves,
and register as end-users of the Software. Allow 4-6 weeks to transfer. Please
contact FineArt Customer Support Department for more
information.
5. Updates.
If the Software is an upgrade or
update to a previous version of , you must possess a
valid license to such previous version in order to use such upgrade or update.
All upgrades and updates are provided to you on a license exchange basis. You
agree that by using an upgrade or update you voluntarily terminate your right
to use any previous version. As an exception, you may continue to use previous
versions of FineArt software in the transition to the
upgrade or update, provided that the upgrade or update and the previous
versions are installed on the same Designated Products. Upgrades and updates
may be licensed to you by FineArt with additional or
different terms.
6. LIMITED WARRANTY.
Except as may be otherwise provided
in Section 13, FineArt warrants to the individual or
entity that first purchases a license for the Software for use on Designated
Products pursuant
to the terms of this agreement that the Software will perform substantially in
accordance with the Documentation for the ninety (90) day period following
receipt of the Software when used on the recommended operating system and
hardware configuration. Non-substantial variation of performance from the
Documentation does not establish a warranty right. THIS LIMITED WARRANTY DOES
NOT APPLY TO PATCHES, FONT SOFTWARE CONVERTED INTO OTHER FORMATS, PRE-RELEASE
(BETA), TRYOUT, STARTER, EVALUATION, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR)
COPIES OF SOFTWARE. All warranty claims must be made, along with proof of
purchase, within such ninety (90) day period. If the Software does not perform
substantially in accordance with the Documentation, the entire liability of FineArt and its affiliates and your exclusive remedy will
be limited to either, at FineArtˇ¦s option,
replacement of the Software or refund of the license fee you paid for the
Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL
RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO
JURISDICTION. For further warranty information, please see the jurisdiction
specific provisions at the end of this agreement, if any, or contact the FineArt Customer Support Department.
7. DISCLAIMER.
THE FOREGOING LIMITED WARRANTY IS
THE ONLY WARRANTY MADE BY FINEART AND ITS AFFILIATES AND STATES THE SOLE AND
EXCLUSIVE REMEDIES FOR FINEART, ITS AFFILIATES OR SUPPLIERS' BREACH OF
WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND ANY WARRANTY,
CONDITION, REPRESENTATION OR TERM TO THE EXTENT THE SAME CANNOT OR MAY NOT BE
EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, FINEART AND
ITS AFFILIATES AND SUPPLIERS PROVIDE THE SOFTWARE AND ACCESS TO ANY WEBSITES, ONLINE
SERVICES AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES,
CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE,
COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT
LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS
FOR ANY PARTICULAR PURPOSE. The provisions of Sections 7 and Section 8 will
survive the termination of this agreement, howsoever caused, but this will not
imply or create any continued right to use the Software after termination of
this Agreement.
8. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXCLUSIVE REMEDY SET
FORTH ABOVE AND AS OTHERWISE PROVIDED IN SECTION 13, IN NO EVENT WILL FINEART
OR ITS AFFILIATES OR SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS
OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL
DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS
INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY
A THIRD PARTY, EVEN IF AN FINEART REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS
AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR
JURISDICTION. FINEARTˇ¦S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND
SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE
AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE
EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR
MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this agreement limits FineArtˇ¦s liability to you in the event of death or
personal injury resulting from FineArtˇ¦s negligence
or for the tort of deceit (fraud). FineArt is acting
on behalf of its affiliates and suppliers for the purpose of disclaiming,
excluding and limiting obligations, warranties and liability, but in no other
respects and for no other purpose. For further information, please see the
jurisdiction specific information at the end of this agreement, if any, or
contact the FineArt Customer Support Department.
9. Export Rules.
You agree that the Software will not
be shipped, transferred or exported into any country or used in any manner
prohibited by the United States Export Administration Act or any other export
laws, restrictions or regulations (collectively the "Export Laws").
In addition, if the Software is identified as an export controlled item under
the Export Laws, you represent and warrant that you are not a citizen of, or
located within, an embargoed or otherwise restricted nation (including without
limitation Iran, Iraq, Syria, Sudan, Libya, Cuba and North Korea) and that you
are not otherwise prohibited under the Export Laws from receiving the Software.
All rights to use the Software are granted on condition that such rights are
forfeited if you fail to comply with the terms of this agreement.
10. Governing Law.
This agreement will be governed by
and construed in accordance with the substantive laws in force in the location
of the Headquarters of FineArt Technology Co., Ltd.
and the court of the location of the Headquarters of FineArt
Technology Co., Ltd., shall each have non-exclusive jurisdiction over all
disputes relating to this agreement. This agreement will not be governed by the
conflict of law rules of any jurisdiction or the United Nations Convention on
Contracts for the International Sale of Goods, the application of which is expressly
excluded.
11. General Provisions.
If any part of this agreement is
found void and unenforceable, it will not affect the validity of the balance of
this agreement, which will remain valid and enforceable according to its terms.
This agreement will not prejudice the statutory rights of any party dealing as
a consumer. The Chinese version of this agreement will be the version used when
interpreting or construing this agreement. This is the entire agreement between
FineArt and you relating to the Software and it
supersedes any prior representations, discussions, undertakings, communications
or advertising relating to the Software.
12. Compliance with Licenses.
If you are a business, company or
organization, you agree that upon request from FineArt
or its authorized representative you will within thirty (30) days fully
document and certify that use of any and all FineArt
software at the time of the request is in conformity with your valid licenses
from FineArt.
13. Specific Provisions and
Exceptions.
This section sets forth specific
provisions related to certain components of the Software as well as limited
exceptions to the above terms and conditions. To the extent that any provision
in this section is in conflict with any other term or condition in this
agreement, this section will supersede such other term or condition.
13.1 Pre-release
Software Additional Terms. If the Software is pre-commercial release or beta
software ("Pre-release Software"), then this Section applies. The
Pre-release Software is a pre-release version, does not represent final product
from FineArt, and may contain bugs, errors and other
problems that could cause system or other failures and data loss. FineArt may never commercially release the Pre-release
Software. If you received the Pre-release Software pursuant to a separate
written agreement, such as the FineArt Systems
Incorporated Serial Agreement for Unreleased Products, your use of the Software
is also governed by such agreement. You will return or destroy all copies of
Pre-release Software upon request by FineArt or upon FineArt's commercial release of such Software. YOUR USE OF
PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 7 and 8 FOR WARRANTY
DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN PRE-RELEASE SOFTWARE.
13.2 Tryout,
Product Sampler, NFR, Additional Terms. If the Software is
tryout, starter, product sampler, or NFR software ("Tryout
Software"), then the following Section applies. The Tryout Software may
contain limited functionality and is to be used for demonstration and
evaluation purposes only and not for your commercial purposes. YOUR USE OF
TRYOUT SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 7 and 8 FOR WARRANTY
DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN TRYOUT SOFTWARE.
13.3 Time Out Software. If the
Software is a timeout version then it will cease operations after a designated
period of time or number of launches following installation. The license
hereunder will terminate after such period or number of launches unless
extended by FineArt upon your acquisition of a full
retail license. ACCESS TO ANY FILES OR OUTPUT CREATED WITH SUCH SOFTWARE OR ANY
PRODUCT ASSOCIATED WITH SUCH SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
13.4
Educational Software Product. If the Software accompanying this
agreement is Educational Software Product (Software manufactured and
distributed for use by only Educational End Users), you are not entitled to use
the Software unless you qualify in your jurisdiction as an Educational End User.
If you have any questions regarding
this agreement or if you wish to request any information from FineArt please contact FineArt's Sales
Department.
(Remark):
1.This software is
the copyrighted work of FineArt, and Transcend
Information, Inc. has not guaranteed or assured the quality of this licensed
software. Your use of the software is governed by the terms of the end user
license agreement, which accompanies or is included with the software. You
shall not install this software that is accompanied by or includes a License
Agreement, unless you first agree to the terms of the License Agreement.
2.TRANSCEND
INFORMATION, INC. IS NOT LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING,
MODIFYING, CONTRIBUTING, COPYING THE SOFTWARE. TRANSCEND INFORMATION, INC. IS
ALSO NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGE (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA
OR OTHER ECONOMIC ADVANTAGE)
3.You can find the contact
information of the respective third party provider by reading the License
Agreement or calling Transcend Information, Inc.