End User License Agreement

NOTICE TO USER:

THIS IS AN AGREEMENT GOVERNING YOUR USE OF PHOTOMIX  SOFTWARE, FURTHER DEFINED HEREIN AS "PRODUCT," AND THE LICENSOR OF THE PRODUCT IS WILLING TO PROVIDE YOU WITH ACCESS TO THE PRODUCT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.  BELOW, YOU ARE 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 INSTALL OR OPERATE THE PRODUCT.  BY INSTALLING THIS PRODUCT 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 fCoder Group, Inc. (the "Licensor"), regarding the Licensor’s software and service titled PhotoMix owned by the Licensor and/or its respective affiliates and licensors, as applicable pursuant to a valid license, you are about to download in object code form or other related services, including without limitation a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided (the "Software"), and b) all successor 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 Updates shall not include a new subsequent releases of the PhotoMix bearing a new first numeral such as 3.0 or 4.0 ("New Releases"), and c) related user documentation and explanatory materials or files provided in written, "online" or electronic form (the "Documentation" and together with the Software and Updates, 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" 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 you represent that you have authorized the person accepting this agreement to do so on your 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, storing, loading, installing, executing, displaying, copying the Product into the memory of a Client Device, as defined below, or otherwise benefiting from using the functionality of the Product in accordance with the Documentation ("Operating"), you agree to be bound by the terms and conditions 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 and, if applicable, you may return the Product to the place of purchase for a full refund.  As Licensor maintains a "satisfaction guaranteed" policy, you may also return the Product for a full refund (except for shipping and handling charges) within sixty (60) days of purchase, provided that you uninstall, delete and destroy all Software, Updates, Documentation, and related files, including without limitation Serial Number, as defined below, and execute and deliver to Licensor a "letter of destruction" certifying to the completion of such actions.

 A COPY OF THIS EULA CAN BE FOUND AT THE INSTALLATION DIRECTORY UNDER THE DOCUMENTS NAME "PHOTOMIX USER AGREEMENT.TXT" OR ONLINE-HELP/EULA SHOULD YOU WISH TO CONSULT IT IN THE FUTURE.

 BEFORE YOU PUT A CHECKMARK AT THE "I ACCEPT THE AGREEMENT" BUTTON AND PRESS "NEXT," PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS SUCH ACTIONS ARE A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE "I ACCEPT THE AGREMENT" AND "NEXT" BUTTONS, 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 PRODUCT WILL NOT BE INSTALLED ON YOUR CLIENT DEVICE, AS SUCH TERM IS DEFINED BELOW.  For your reference, you may refer to the copy of this Agreement that can be found in the Help for the Software.  You may also receive a copy of this Agreement by contacting Licensor at: support@photomix.com.

1.      Proprietary Rights and Non-Disclosure.

1.1.           Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and or the valuable trade secrets of the Licensor and/or its respective affiliates, suppliers and 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 respective affiliates, suppliers and licensors own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by 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 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 and constitutes trade secrets of the Licensor.  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.

1.3.           Serial Number and Confidential Information.  You agree that, unless otherwise specifically provided herein or agreed by the Licensor in writing, the Product, including the specific design and structure of individual programs and the Product, including without limitation the Serial Number provided to you by the Licensor and/or its authorized resellers or distributors, constitute confidential proprietary information of the Licensor.   For purposes hereof, "Serial Number" shall mean a unique sequence of digit 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 and the number of permitted users, and enabling the full functionality of the Product in accordance with the license granted under this Agreement.  You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of the Licensor.  You agree to implement reasonable security measures to protect such confidential information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Serial Number provided to you by the Licensor and/or its authorized resellers or distributors.

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 following rights ("License") and you hereby agree and accept such License:

a).    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 with such limited and/or abridged functionality as Licensor may, at its sole discretion, deem necessary or appropriate, and you may Operate the Product only (i) to the extent such functionalities made available by Licensor, (ii) for evaluation purposes, and (iii) only during the single applicable evaluation period, if any, granted to you by the Licensor.  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 Software without any modifications whatsoever to any third party subject to this Agreement.

b).    Unregistered Version of PhotoMix.  The unregistered version of PhotoMix may be freely distributed in its original format, with exceptions noted below, provided the distribution package is unmodified.  No person or company may charge a fee for the distribution of PhotoMix without written permission from the Licensor.  The unregistered demo version of PhotoMix may not be bundled or distributed with any other package without the express written permission of the Licensor.

c).    Grant of License.  Unless otherwise specifically indicated under a valid license (e.g. volume license) granted by the Licensor, upon registration of the Product (online or otherwise as provided by Licensor), you are granted a non-exclusive and non-transferable license to install and Operate one (1) copy of the Product and during the term of your subscription license, subject to the payment of the applicable fees and your compliance with the terms hereof, this Agreement permits you  to Operate one (1) copy of the specified version of the Product, for internal purposes only, on one computer, workstation, personal digital assistant, ‘smart phone,’ mobile phones, hand-held devices, or other electronic devices for which the Software was designed  (each a "Client Device").  Additionally, Licensor reserves the right to provide for specific terms and conditions in the individual licenses and such terms may be embedded in Serial Number specifying other terms, conditions and restrictions of Operating of the Product.  If you have purchased multiple licenses for the Product, then the number of multiple licenses shall determine the number of copies of the Product you may have and the number of Client Devices on which you may operate the Product.  If the Product is licensed as a suite or bundle with more than one specified software product, this license applies to all such specified software products, subject to any restrictions or usage terms specified on the applicable price list or product packaging that apply to any of such software products individually.  The Licensor reserves all rights not expressly granted herein.

d).    Volume use.  If the Product is licensed with volume license terms specified in the applicable product invoicing or packaging for the Product, you may make use and install as many additional copies of the Product on the number of Client Devices as the volume license terms specify. You must have a reasonable mechanism in place to ensure that the number of Client Devices on which the Product has been installed does not exceed the number of licenses you have obtained.  This license authorizes you to make or download one copy of the Documentation for each additional copy authorized by the volume license, provided that each such copy contains all of the Documentation’s proprietary notices

e).    Personal Use License.  If the Product is licensed under Personal License upon the terms specified in the applicable Personal License invoicing or packaging for the Product, you may make use of the Product solely for Personal Use.  For purposes hereof, "Personal Use" shall mean personal non-commercial use, and not on behalf or for the benefit of any clients and excludesany commercial purposes whatsoever, which include without limitation: advertising marketing and promotional materials/services on behalf of an actual client, employer, employee or for your own benefit, any products that are commercially distributed, whether or not for a fee (including any photo images, t-shirts, posters, templates, flyers, brochures, calendars, screensavers, "photo mugs," mailings in hard copy or electronic format), any materials or services for sale or for which fees or charges are paid or received.

f).      Educational Purpose License and Educational Institution Site License.  If the Product is licensed under an Educational Purpose License upon the terms specified in the applicable Educational Purpose License invoicing or packaging for the Product, you may make use of the Product solely for Educational Purpose. "Educational Purpose" means any non-commercial study or research that is undertaken solely in furtherance of one’s education, whether or not completed by a student in pursuit of an educational degree, certificate or diploma and as used by teachers or facilitates teaching of a class, and all administrative staff, faculty and employees, of any college, university, trade school or other school ("Educational Institution").  With the acquisition of an Educational Institution Site License, you may install and use the Product on an unlimited amount of Client Devices within one Educational Institution in one geographic location.  Within these limitations, you may install the Product as a "Network" Product and run the software from any networked Client Devices on your LAN, provided those Client Devices are located exclusively within one office at one geographic location.

g).     Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles.  If the Product supports multiple platforms or languages, 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 number of your Client Devices on which all versions of the Product are installed may not exceed the number of licenses you have obtained from the Licensor.  Except as otherwise specifically provided herein, you may not rent, lease, sublicense, lend or transfer any versions or copies of the Product you do not use.

h).    Updates.  During the Term of this Agreement, as defined below, you may download Updates to the Product when and as the Licensor publishes them in its electronic bulletin board system, website or through other online services.  If the Product is an Update to a previous version of the Product, you must possess a valid license to such previous version in order to use the Update.  You may continue to use the previous version of the Product on your Client Device after you receive the Update to assist you in the transition to the Update, provided that: (i) the Update and the previous version are installed on the same Client Device; (ii) the previous version or copies thereof are not transferred to another party or Client Device unless all copies of the Update are also transferred to such party or Client Device; and (iii) you acknowledge that any obligation the Licensor may have to support the previous version of the Product may be ended upon availability of the Update.

i).      Back-up Copies.  You can make one (1) copy the Product for backup and archival purposes, provided, however, that the original and each copy is kept in your possession or control, and that your installation and use of the Product does not exceed that which is allowed in this Section 2.

j).      Prohibitions.  You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or transfer the licensed program, or any subset of the licensed program, except as provided for in 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.  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 Licensor.

k).     Serial Number.  You may not give give away, sell or otherwise transfer your registration Serial Number or any copythereof to a third party.  Serial Number 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 constitutes an infringement of Licensor’s copyright.  Licensor  retains the right of claims for compensation in respect of damage which occurred by your giving away the Serial Number or registration code contained therein.  This claim shall also extend to all costs which Licensor incurs in defending itself.

l).      Acceptance of Licensing Terms.  Installing and Operating the Product signifies acceptance of these terms and conditions of the License. If you do not agree with the terms of the license you must remove all PhotoMix software files from your storage devices, including any back-up or archival copy, and cease to Operate the Product. 

m).  Term and Termination.  The term of this Agreement ("Term") shall begin when you download or install the Product or pay the applicable license fees (whichever is earlier) and shall continue for the term specified in your order.  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.

n).    No Rights Upon Termination.  Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way.

o).      Material Terms and Conditions.  You specifically agree that each of the terms and conditions of this Section 2 are 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 2.1(m) shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.

3.      Restrictions.

3.1.          No Transfer of Rights.  Under no circumstances you shall sell, loan, rent, lease, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy thereof, in whole or in part, without Licensor's prior written consent, provided that  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.  Notwithstanding the foregoing, you may not transfer education, pre-release, or "not for resale" copies of the Product.  You may not 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, purchase order or product packaging for the Product.  You may not reverse engineer, decompile, disassemble or otherwise reduce any party of the Product to human readable form 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, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the 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 affiliates’ proprietary rights in the Software are protected.  You may not modify, or create derivative works based upon the Product in whole or in part.

3.2.          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. 

3.3.          Compliance with Law.  You agree that in Operating the Product and in using any report 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. 

3.4.          Additional Protection Measures.  Solely for the purpose of preventing unlicensed use of the Product, the Software, during the installation or an online activation, may install on your Client Device 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.  The update of these technological measures may occur through the installation of the Updates.  The Updates will not install on unlicensed copies of the Product.  If you are not using a properly licensed copy of the Product, you are not allowed to install the Updates. The Licensor will not collect any personally identifiable information from your Client Device during this process of installing such technological measures but the activation of the Software may require you to enter such personally identifiable information and the collection and use of such information is governed by the Licensor’s Privacy policy, as updated from time to time, as found at www.photomix.com.

4.      WARRANTIES AND DISCLAIMERS.

4.1.          Limited Warranty.  The Licensor warrants that for sixty (60) days from the earlier of i) original purchase of the media (e.g. diskettes) on which the Product is contained, or ii) the date the Serial Number is provided to you by Licensor, the Product will be free from defects in materials and workmanship and that the Software will perform substantially in accordance with the Documentation or generally conform to the Product’s specifications published by the Licensor.  Non-substantial variations of performance from the Documentation do not establish a warranty right.  THIS LIMITED WARRANTY DOES NOT APPLY TO TRIAL AND EVALUATION VERSIONS, UPDATES, 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 of the license fee you 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.          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 in 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.  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.  Outside the United States, this remedy may not be available to the extent the Licensor is subject to restrictions under United States export control laws and regulations.

4.3.          NO OTHER WARRANTIES.  EXCEPT FOR THE FOREGOING LIMITED WARRANTY, 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 IS 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 OR CONTENT THEREIN 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 TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT.  THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS 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.

4.4.          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 OR COMPILED 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.      U.S. Government-Restricted Rights.

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.          Export Restrictions. 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 downloading or 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.        Your Information and the Licensor’s Privacy Policy.

6.1.          Privacy Policy.  You acknowledge receipt of and agree to the Licensor’s privacy statement which is made available to you in connection with installation and is set forth in full at http://www.photomix.com/.  You hereby expressly consent to the Licensor’s processing of your personal data (which may be collected by the Licensor or its distributors) according to the Licensor’s current privacy policy as of the date of the effectiveness hereof which is incorporated into this Agreement by reference.  By entering into this Agreement, you agree that the Licensor may collect and retain information about you, including your name, email address and credit card information.  The Licensor employs other companies and individuals to perform certain functions on its behalf.  Examples include fulfilling orders, delivering packages, sending postal mail and e-mail, removing repetitive information from customer lists, analyzing data, providing marketing assistance, processing credit card payments, and providing customer service.  They have access to personal information needed to perform their functions, but may not use it for other purposes. The Licensor publishes a privacy policy on its web site and may amend such policy from time to time in its sole discretion.  You should refer to the Licensor’s privacy policy prior to agreeing to this Agreement for a more detailed explanation of how your information will be stored and used by the Licensor.  If "you" are an organization, you will ensure that each member of your organization (including employees and contractors) about whom personal data may be provided to the Licensor has given his or her express consent to the Licensor’s processing of such personal data.  Personal data will be processed by the Licensor or its distributors in the country where it was collected, and possibly in the United States and Germany.  United States laws regarding processing of personal data may be less or more stringent than the laws in your jurisdiction.

6.2.          Public Announcements.  The Licensor may identify you to the public as a customer of the Licensor and describe in a customer case study the services and solutions delivered by the Licensor to you.  The Licensor may also issue one or more press releases, containing an announcement of the execution and delivery of this Agreement and/or the implementation of the Product by you.  Nothing contained in this Section 6.2 shall be construed as an obligation by you to disclose any of your proprietary or confidential information to any third party.  In addition, you may opt-out from this Section 6.2 by writing an opt-out request to the Licensor at support@photomix.com.

7.      Miscellaneous.

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.  To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Products in any competent jurisdiction.  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.  The federal and state courts within the Commonwealth of Virginia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.  You agree that this Agreement is to be performed in the Commonwealth of Virginia 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 federal or state courts in of the Commonwealth of Virginia 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 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.  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 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 maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent.  No waiver of any provision or condition herein shall be valid unless in writing and signed by you and an authorized representative of Licensor provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach.  Licensor’s failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.

7.4.          Contact Information.  Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department at support@photomix.com.

© 1998-2004 fCoder Group, Inc.  All rights reserved.  The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. 

fCoder Group, Inc. © 2005