LICENSE AGREEMENT
NOTICE TO USER: PLEASE READ THIS LICENSE CAREFULLY. BY DOWNLOADING AND/OR USING ALL OR ANY PORTION OF THE SOFTWARE AND/OR USING A SUPPLIED ENCRYPTED KEY YOU ("LICENSEE") ACCEPT THE FOLLOWING TERMS FROM PICSALIVE PTE. LTD. ("PICSALIVE"). YOU AGREE TO BE BOUNDS BY ALL THE TERMS AND CONDITIONS OF THIS LICENSE. YOU AGREE THAT IT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED LICENSE SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE AND/OR ENCRYPTED KEY.
1. DEFINITIONS
1.1 "Documentation" means the electronic and/or hard copy user manual supplied with the Software and/or on the media on which the Software is supplied.
1.2 "Effective Date" means the date of invoice or date of payment, whichever is the earlier.
1.3 "Minimum Requirements" means the minimum technical specification required to enable the Software to function in accordance with the Documentation and/or at all, as set out in the Documentation.
1.4 "Permitted Number" means the number, agreed by PicsAlive as evidenced in writing or by e-mail, of PCs and/or laptops on which the Licensee is permitted to install the Software.
1.5 "Software" means the object code form of the software with which this License Agreement is provided or the software in respect of which the encrypted key is provided, as appropriate, together with any bug fixes, enhancements, or other modifications of the Software provided to Licensee under a separate maintenance agreement between the parties.
2. GRANT OF RIGHTS AND RESTRICTIONS
2.1 Subject to all the terms and conditions of this License Agreement, PicsAlive hereby grants Licensee a perpetual (terminable only as provided in Clause 5.1), worldwide, nonexclusive, nontransferable, paid-up license to install and use the Software on the Permitted Number of PCs and/or laptops for its own internal use only. This license is in respect of use of the Software by the Licensee only and no subsidiaries or holding company of the Licensee may use the Software.
2.2 Except as expressly permitted in this License Agreement, Licensee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form; (iii) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Licensee's right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of PicsAlive affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this License Agreement.
2.3 Licensee agrees, subject to reasonable prior notice, to give PicsAlive such access and assistance to Licensee's systems as may be necessary to confirm the number of users does not exceed the Permitted Number.
3. PROPRIETARY RIGHTS
PicsAlive has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This License Agreement conveys a limited license to use the Software and shall not be construed to convey title to or ownership of the Software to Licensee. All rights in and to the Software not expressly granted to Licensee are reserved by PicsAlive.
4. LICENSE FEE
IIn consideration for the license for the Permitted Number granted to Licensee hereunder, Licensee shall pay PicsAlive a one-time nonrefundable license fee in accordance with PicsAlive's license fee charges as published from time to time or as otherwise agreed between Licensee and PicsAlive as evidenced in writing or by e-mail. Such license fee shall be due and payable on the date that the Licensee accepts this License Agreement. Such license fee is exclusive of VAT or other sales tax. If any applicable law requires Licensee to withhold amounts from any payments to PicsAlive hereunder, (i) Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish PicsAlive with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, PicsAlive receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount PicsAlive would have received and retained in the absence of such required deduction or withholding.
5. TERM AND TERMINATION
5.1 This License Agreement shall commence on the Effective Date and continue in effect indefinitely, unless terminated in accordance with this Clause 5.1. If either party breaches this License Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party's receipt of such notice, this License Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).
5.2 Upon any termination of this License Agreement, (a) the rights and licenses granted to Licensee herein shall terminate; (b) Licensee shall cease all use of the Software; (c) Licensee shall return to PicsAlive all copies of the Software and Documentation in Licensee's possession or under its control; and (d) Licensee shall certify in writing to PicsAlive its compliance with the foregoing. Clauses 1, 3, 4 (to the extent of unpaid obligations), 5.2, 6, 7 and 8 shall survive any termination of this License Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 PicsAlive warrants that the Software will function materially in accordance with the Documentation for a period of ninety (90) days from the Effective Date. PicsAlive shall have no obligation to provide ongoing support or maintenance services to Licensee unless the parties enter into a separate maintenance agreement.
6.2 The above warranty is conditional upon the Licensee complying with the Minimum Requirements.
6.3 THE WARRANTIES SET FORTH IN THIS CLAUSE 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE, ALL OF WHICH ARE HEREBY EXCLUDED AND DISCLAIMED.
6.4 The Licensee hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this License Agreement.
7. LIMITATION OF LIABILITY
7.1 LICENSEE'S SOLE REMEDY WITH RESPECT TO ANY CLAIMS ARISING OUT OF THIS LICENSE AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE MONIES PAID BY LICENSEE TO PICSALIVE UNDER THIS LICENSE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
7.2 IN NO EVENT SHALL PICSALIVE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND GOODWILL, BUSINESS OR BUSINESS BENEFIT, OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY LICENSEE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CIRCUMSTANCES SHALL PICSALIVE BE LIABLE FOR ANY FAILURE OF THE SOFTWARE TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION, OR AT ALL, RESULTING FROM A FAILURE BY THE LICENSEE TO COMPLY WITH THE MINIMUM REQUIREMENTS. ADDITIONALLY, LICENSEE ACKNOWLEDGES THAT WHILST THE SOFTWARE MAY BE USED IN COMBINATION WITH THIRD PARTY SOFTWARE, PICSALIVE BEARS NO LIABILITY, HOWSOEVER ARISING, FOR ANY LOSS, DAMAGE OR COST THAT ARISES FROM A FAILURE OF THE SOFTWARE TO INTEGRATE WITH LICENSEE OR THIRD PARTY SOFTWARE.
8. GENERAL
8.1 Licensee shall not assign this License Agreement, in whole or in part, without the written consent of PicsAlive.
8.2 Licensee consents to the use by PicsAlive of Licensee's name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between Licensee and PicsAlive.
8.3 Licensee agrees that because of the unique nature of the Software and PicsAlive's proprietary rights therein, a demonstrated breach of this License Agreement by Licensee would irreparably harm PicsAlive and monetary damages would be inadequate compensation. Therefore, Licensee agrees that PicsAlive shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this License Agreement.
8.4 If any provision of this License Agreement or the Software thereof is declared void, illegal, or unenforceable, the remainder of this License Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
8.5 Any failure by any party to this License Agreement to enforce at any time any term or condition under this License Agreement will not be considered a waiver of that party's right thereafter to enforce each and every term and condition of this License Agreement.
8.6 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.
8.7 This License Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by Licensee shall supersede this License Agreement.
8.8 If you do not agree to the terms of this License Agreement, you may obtain a refund of the amount paid for the Software if you: (a) do not use the Software and the accompanying items (including all electronic materials, documents etc) and (b) notify PicsAlive in writing of your non acceptance of this License Agreement, with proof of payment, at the address set out below within 30 days of the purchase date.