CUTEX END USER LICENSE AGREEMENT
ATTENTION. READ CAREFULLY: THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA"), WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, ONLINE OR ELECTRONIC DOCUMENTATION. IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR A SINGLE ENTITY, AND CUTEX. THIS IS A LICENSE, NOT A SALE. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING, COPYING AND OTHERWISE USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN SELECT THE "CANCEL" BUTTON, DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
IMPORTANT: IF YOU ARE DOWNLOADING OR INSTALLING THIS PRODUCT, PARTS OF IT, UPDATES, UPGRADES OR EXTENTIONS, ALL RISK OF DAMAGE TO THE PRODUCT DURING TRANSMISSION AND DOWNLOAD IS ASSUMED BY YOU. READ CAREFULLY THE TERMS AND CONDITIONS OF THE LICENSE BEFORE DOWNLOADING OR INSTALLILNG THIS PRODUCT. BY DOWNLOADING OR INSTALLING THIS PRODUCT:
I. You certify that you are not a minor and that you agree to be bound by all of the terms and conditions set out in this License. Downloading and/or using the Product will be an irrevocable acceptance of the terms and conditions of the License.
II. You agree to be responsible for any and all internet service provider fees, telecommunication and other charges that may apply as a result of your download of the Product.
III. You represent and warrant to CUTEX, if you are accepting on behalf of a company or other legal entity, that you have full authority to bind such entity.
IV. You agree with checking your valid Product serial number by the CUTEX server.
IF YOU DO NOT AGREE WITH THE ABOVE, DO NOT DOWNLOAD OR INSTALL THIS PRODUCT.
1.1 "Permitted Number": If the Product is a Professional Edition the Permitted Number is one (1) for 1 Computer. If the Product is a Standard Edition the Permitted Number is unlimited.
1.2 "Computer" means one (1) central processing unit (CPU) that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
1.3. "Software" and "Product" means (a) a computer program, computer software (including its code) objects (including their APIs), and all of the contents of the files, disk(s), CD- ROM(s) or other media with which this Agreement is provided, including digital images, stock photographs, templates, animations, video, audio, related explanatory written materials or files ("Documentation"), and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by CUTEX (collectively, "Updates").
1.4. "Use" or "Using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
1.5 "Documentation" means any accompanying printed materials, this License, any other agreement you may have with CUTEX relating to this Product, and "online" or electronic documentation.
1.6 "Permitted Number" means one (1) unless otherwise indicated under a valid license (e.g. volume license) granted by CUTEX or one of its subsidiaries.
1.7. "CUTEX" means CUTEX Systems GmbH.
As long as you comply with the terms of this End User License Agreement (the "Agreement") CUTEX provides you with a Product and grants you a non-exclusive license to Use the Product in accordance with the terms of this License. Any supplemental software code and supporting materials provided to you as part of support services provided by CUTEX for the Product shall be considered part of the Product and subject to the terms and conditions of this License. The copyright and all other rights to the Product shall remain with CUTEX or its licensors. You must reproduce any copyright or other notice marked on the Product on all copies you make. Some third party materials included in the Product may be subject to other terms and conditions which are typically found in the "About" menu and in a "Read Me" file located near such materials.
3. YOU MAY:
3.1 General Use. You may install, use, access, display and run one (1) copy of the Software on your compatible single computer, up to the Permitted Number of computers and processors at any one time on any single workstation computer.
3.2 Server Use. A single license for the Product may not be shared, used, access, display or run concurrently on different Computers unless you have another agreement with CUTEX. You may install one copy of the Software on your computer file server for the purpose of downloading and installing the Software onto other computers within your internal network up to the Permitted Number or you may install one copy of the Software on a computer file server within your internal network for the sole and exclusive purpose of using the Software through commands, data or instructions (e.g. scripts) from another computer on your internal network, provided that the total number of users that access or use the Software on such computer file server, does not exceed the Permitted Number. No other network use is permitted, including but not limited to, using the Software either directly or through commands, data or instructions from or to a computer not part of your internal network, for internet or web hosting services or by any user not licensed to use this copy of the Software through a valid license from CUTEX.
3.3 Backup. You may make one copy of the Product solely for archive or backup purposes provided your backup copy is not installed or used on any computer.
3.4 Home Use. You, as the primary user of the computer on which the Software is installed, may also install the Software on one (1) of your home computer provided that copy is never loaded in the RAM on your home computer at the same time the Software on the primary computer is being loaded in the RAM.
4. YOU MAY NOT:
4.1 Using the Product. Use the Product or make copies of it other than as permitted in this License except to the extent the foregoing restriction is, by operation of applicable law, prohibited or of no effect.
4.2 Reverse Engineering. Translate, reverse engineer, decompile, or disassemble the Product except to the extent the foregoing restriction is, by operation of applicable law, prohibited or of no effect.
4.3 Transfer. You may not rent, lease, assign, sell, sublicense, lend or transfer the Product or any portion of the Software to be copied onto another user's computer except as may be expressly permitted herein. You may, however, transfer all your rights to use the Software to another person or legal entity provided that: (a) you also transfer each this Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) you retain no 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 upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not for resale copies of the Software.
4.4 Multiple Environment Software / Multiple Language Software / Dual Media Software / Multiple Copies/ Bundles / Updates. If the Software supports multiple platforms or languages, if you receive the Software on multiple media, if you otherwise receive multiple copies of the Software, or if you received the Software bundled with other software, the total number of your computers on which all versions of the Software are installed may not exceed the Permitted Number. You may not rent, lease, sublicense, lend or transfer any versions or copies of the Software you do not use. If the Software is an Update to a previous version of the Software, 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 Software on your computer after you receive the Update to assist you in the transition to the Update, provided that: the Update and the previous version are installed on the same computer; the previous version or copies thereof are not transferred to another party or computer unless all copies of the Update are also transferred to such party or computer; and you acknowledge that any obligation CUTEX may have to support the previous version of the Software may be ended upon availability of the Update.
4.5 Modify. You may not modify the Product or merge all or any part of the Product with another program.
4.6 Redistribute. You may not redistribute the templates or image files included with the Product.
4.7 Separate component parts. You may not separate the component parts of the Product for Use on more than one (1) Computer except to the extent the foregoing restriction is, by operation of applicable law, prohibited or of no effect.
5. INTELLECTUAL PROPERTY RIGHTS:
Except as expressly licensed to you in this License, CUTEX retains all right, title and interest in and to the Product and any copies you are authorized by CUTEX to make. The Product is protected by copyright, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this License does not grant you any intellectual property rights in the Product. All rights not expressly granted are reserved by CUTEX.
This License shall remain in effect only for so long as you are in compliance with the terms and conditions of this License. This License will terminate if you fail to comply with any of its terms or conditions. You agree, upon termination, to destroy all copies of the Product. The Intellectual Property Rights, Limited Warranty, Disclaimer and Limitation of Liability provisions set out in Sections 5., 7., 8., 9., 11. and 12. shall continue in force even after any termination.
7. LIMITED WARRANTY:
CUTEX warrants to the person or entity that first purchases a license for the Software for use pursuant to the terms of this license 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 hardware configuration. Non-substantial variations of performance from the Documentation does not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO UPDATES, FONT SOFTWARE CONVERTED INTO OTHER FORMATS, PRE-RELEASE, RELEASE CANDIDATE, TRYOUT, PRODUCT SAMPLER, DOWNLOAD VERSION OR NOT FOR RESALE (NFR) COPIES OF SOFTWARE. To make a warranty claim, you must return the Software to the location where you obtained it 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 CUTEX and your exclusive remedy shall be limited to either, at CUTEX's option, the replacement of the Software or the 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.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY ABOVE 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 ON AN "AS IS" BASIS, WITHOUT ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUTEX AND ITS SUPPLIERS AND DEALERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE PRODUCT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT IS ASSUMED BY YOU. WHERE ANY NON-EXCLUDABLE TERMS ARE IMPLIED INTO THIS LICENSE BY OPERATION OF LAW, TO THE EXTENT PERMISSIBLE BY LAW, CUTEX LIMITS ITS LIABILITY TO, AT ITS OPTION, THE REPAIR OR REPLACEMENT OF THE GOODS, THE RE-SUPPLY OF EQUIVALENT GOODS, OR THE COST THEREOF.
9. LIMITATION OF LIABILITY:
SUBJECT TO THE EXPRESS LIMITED WARRANTY ABOVE, IN NO EVENT WILL CUTEX, ITS DEALERS OR SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION WHATSOEVER) OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF A CUTEX REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. CUTEX IS ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. IN THE EVENT THAT THE ABOVE LIMITATION OF LIABILITY IS NOT VALID IN YOUR JURISDICTION, CUTEX'S MAXIMUM AGGREGATE LIABILITY AND THAT OF CUTEX'S DEALERS AND SUPPLIERS SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH. THE FOREGOING EXCLUSIONS AND LIMITATIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. CUTEX IS ACTING ON BEHALF OF ITS DEALERS AND SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND/OR LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY AS PROVIDED IN THIS LICENSE, BUT IN NO OTHER RESPECTS.
10. EXPORT CONTROLS: 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 export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Cuba, Iraq, Iran, North Korea, Rwanda, Sudan, Syria) 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.
11. EXCEPTIONS FOR USERS LOCATED IN GERMANY OR AUSTRIA:
11.1 Limited Warranty for Users Located in Germany or Austria. If you obtained the Product in Germany or Austria and such country is your usual domicile, then Section 7 (LIMITED WARRANTY) and other warranty provisions contained in this License are, to the extent inconsistent with this Section, replaced or amended by the statutory provisions on the substance and remedy of defects of goods, provided that: CUTEX may remedy substantial defects of the Product at its reasonable discretion by (i) providing a patch, update or replacement Product or (ii) asking for return of the Product and canceling the License. You are entitled to a reduction of the purchase price or a rescission of the License only if CUTEX has repeatedly failed to remedy the defect after a reasonable period of time. If you are a consumer, your claims under this clause are time-barred in 24 months or, if you are a business, in 12 months. If you alter the Product in any way without being authorized by CUTEX, CUTEX will not remedy defects caused by such alteration and you are liable for any damages incurred by CUTEX due to your unauthorized alteration. IF YOU INSTALL PRE-RELEASE PRODUCTS MARKED AS SUCH, YOU DO SO AT YOUR OWN RISK, Pre-release products are to be used only for test purposes in testing environments and must not be used for production purposes. For further details, please see the Pre-Release Addendum below. To make a warranty claim you must provide a detailed error description to CUTEX Customer Service or, at CUTEX's request, return the Product, at CUTEX's expense, to CUTEX. For further warranty information, please contact CUTEX Customer Service.
11.2 Limitation of Liability for Users Located in Germany or Austria. If you obtained the Product in Germany or Austria and such country is your usual domicile, then Sections 9 (LIMITATION OF LIABILITY) and other liability provisions contained in this License are, as far as inconsistent with this Section, replaced or amended as follows: CUTEX may be liable (i) without limitation for damages you have incurred under or in connection with this License only if the damage has been caused by the willful or grossly negligent act of CUTEX or its agents; and (ii) for those typical damages that were reasonably foreseeable and which have been caused by any other negligent breach of an essential contractual duty by CUTEX or its agents. Any further liability of CUTEX or its agents is excluded. These aforementioned limitations apply irrespective of their legal basis, in particular with regard to any pre-contractual or auxiliary contractual claims. These limitations shall not apply, however, to any mandatory liability under the applicable German or Austrian Product Liability Act, nor to any damage which is caused due to the breach of an express warranty to the extent that such express warranty was intended to protect the user against the specific damage incurred, nor to damages due to loss of life, injury or prejudice to health.
11.3 If you are a business in Germany or Austria, the courts of the Province of Ontario, Canada shall have exclusive jurisdiction over any matter arising hereunder.
12 EXCEPTIONS FOR USERS LOCATED IN ENGLAND OR WALES:
12.1 Limited Warranty.
If you are acting as a consumer with your habitual residence in the United Kingdom, and you entered into this License in the United Kingdom (a "Consumer"), then Section 9 (LIMITED WARRANTY) and other warranty provisions contained in this License, to the extent inconsistent with this Section, will be replaced or amended by Sections 12.1 and 12.2.
CUTEX warrants to the person or entity who first purchases a license for the Product that the Product will be free from defects in material and workmanship for a period of six (6) months following receipt or download when used on the recommended hardware configuration and otherwise in accordance with the terms and conditions of this License, provided that CUTEX shall not be liable for any (i) damage or loss which arises by way of accident, misuse, unauthorized repair or modification of the Product or use of the Product for a purpose other than that for which it was designed, by you or a third party; (ii) defect in the Product caused by fair wear and tear, abnormal or unsuitable conditions or storage or use or an act, neglect or default by you or a third party; or (iii) defect in the Product unless CUTEX is notified within six (6) months from the date of delivery. To make a warranty claim you must return the Product, at CUTEX's expense to CUTEX within such six (6) month period. CUTEX will not be liable for any warranty claims arising after the expiry of the warranty periaod. If CUTEX is liable under this warranty, CUTEX´s only obligation is to: (i) replace or repair the Product; (ii) reduce the purchase price of the Product; or (iii) rescind the License.
If you are dealing as a Consumer (pursuant to the Unfair Contract Terms Act 1977), Section 12.3 shall not apply to you to the extent English law prohibits the exclusion of those matters. In respect of consumer transactions only (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976), nothing in this License affects your statutory rights as a Consumer.
If you are a business in the United Kingdom or a Consumer, Section 8 (DISCLAIMER) and other disclaimer provisions contained in this License, to the extent inconsistent with this Section, will be replaced or amended by this Section 12.3. Except as expressly set out in this License (including Section 12.2), all conditions, warranties and representations, express or implied by statute, common law or otherwise, in relation to the Product are excluded. CUTEX will not be liable to you (in equity, contract or tort, under the Misrepresentation Act 1967 or in any other way) for a representation that is not set out in this License and you agree that you have not relied on or been induced by any statement or representation in entering into this License other than as expressly set out in this License.
12.4 Limitation of Liability.
If you are a business in the United Kingdom or a Consumer, Section 9 (LIMITATION OF LIABILITY) and other liability provisions contained in this License, to the extent inconsistent with this Section, will be replaced or amended by this Section 12.4. CUTEX will not be liable to you or any third party for any loss, liability, cost, damage or injury, direct or indirect, resulting from defects in design, materials or workmanship whether in contract, tort (including without limitation negligence), misrepresentation or otherwise, save as provided under this Section 12 and save for liability: (i) for death or personal injury resulting from CUTEX's negligence; (II.) for breach of the obligations arising from section 8 (DISCLAIMER) of the Sale of Goods Act 1979; (III.) arising under Part I of the Consumer Protection Act 1987; and for fraud.
CUTEX will not be liable to you whether in contract, tort (including without limitation negligence), misrepresentation or otherwise for: (II.) any indirect or consequential losses or expenses suffered by you or any third party, howsoever caused; (I.) loss or damage incurred by you as a result of third party claims; (III.) loss of profits, goodwill, reputation, business receipts or contracts, or losses or expenses resulting from third party claims.
CUTEX's aggregate liability to you, whether in contract, tort (including without limitation negligence), misrepresentation or otherwise is limited in respect of each event or series of connected events to the cost of the defective or damaged Product which gives rise to such liability.
13. Compliance with Licenses.
If you are a business or organisation, you agree that upon request from CUTEX or CUTEX's authorised representative, you will within thirty (30) days fully document and certify that use of any and all CUTEX Software at the time of the request is in conformity with your valid licenses from CUTEX.
14. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of CUTEX. Updates may be licensed to you by CUTEX with additional or different terms. This is the entire agreement between CUTEX and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
If you have any questions regarding this Agreement or if you wish to request any information from CUTEX please use the address and contact information included with this Product to contact the CUTEX office serving your jurisdiction.
Copyright (c) 2013. CUTEX Systems. All rights are reserved.