UpYourImage.com | License Agreement
END-USER LICENSE AGREEMENT FOR THE USE OF UP YOUR IMAGE WEB PAGE TEMPLATES
IMPORTANT: THIS END-USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU, THE LICENSEE (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND THE UP YOUR IMAGE CORPORATION FOR THE USE OF THE UP YOUR IMAGE WEBPAGE TEMPLATES. THIS IS A LICENSE, NOT A SALE FOR AN UP YOUR IMAGE WEBSITE. CAREFULLY READ THIS LICENSE BEFORE USING THIS PRODUCT. USE OF THIS PRODUCT INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ THIS LICENSE AND AGREE TO BE BOUND BY AND COMPLY WITH ITS TERMS. IF YOU DO NOT AGREE, CONTACT UP YOUR IMAGE CUSTOMER SERVICE AT www.UpYourImage.com WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST PURCHASED THIS LICENSE TO RECEIVE A REFUND.
Unless you have a separate, written agreement with UpYourImage.com, the agreement below gives you permission to use and customize to the extent permissible by UpYourImage.com, one website or website package as defined and designed by UpYourImage.com and the content of the website you are contracting for under the terms of this license. This agreement imposes certain restrictions on your use of and customization of UpYourImage.com website templates.
NOTE: THE UP YOUR IMAGE WEBSITE TEMPLATES, THEIR CONTENT AND APPEARANCE ARE THE INTELLECTUAL PROPERTY OF THE UP YOUR IMAGE AND THE ABILITY TO CUSTOMIZE THEM TO SUIT THE LICENSEE’S TASTES AND PERSONAL WHIMS DOES NOT CREATE A DERIVATIVE INTELLECTUAL PROPERTY PRODUCT THAT IS OWNED OR MAY BE OWNED OR COPYRIGHT PROTECTED BY THE LICENSEE.
The licensee’s use of this UpYourImage.com Product is provided under this end-user license agreement and all applicable addenda (“License”) which defines the obligations of the parties to this agreement and what the licensee may do with this product and its limitations on warranties and/or remedies. This License does not grant any prospective, concurrent or retrospective right in this UpYourImage.com product.
This License is granted by the UpYourImage.com Corporation (UpYourImage.com) and includes the following:
General License Agreement Terms and Definitions
(i) You certify that you are not a minor and that you agree to be bound by all the terms and conditions set forth in this License. Use of this UpYourImage.com product connotes irrevocable acceptance of the terms and conditions of this License;
(ii) You agree to be responsible for any and all internet service provider fees, telecommunication and other charges that may apply to you and any permissive users authorized by you to use this product that stems or springs forth from this License.
(iii) You represent and warrant to UpYourImage.com that, if you are contracting, licensing, accepting and using this product on behalf of any company or corporation or other legal entity, that you have the full authority of the entity to bind the entity; and
(iv) all risk of damage to any software or hardware associated with the use of this Product is assumed by you, the licensee and any entity on whose behalf you are licensing this product.
IF YOU DO NOT AGREE WITH THE FOREGOING STIPULATIONS, DO NOT USE THIS PRODUCT.
General Terms and Definitions
1.1 Definitions
1.1.1 “Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
1.1.2 “Documentation” means any printed materials or instructions that may accompany this product.
1.1.3 “Permitted Number” means one (1) unless otherwise indicted under a valid license granted by UpYourImage.com.
1.1.4 “Product” means an UpYourImage.com website template and includes any images, photographs, animations, video, audio, music, text and “applets” or “applet-like” functions incorporated into the UpYourImage.com website template, and if and where applicable, any media containing all of the above, including any Documentation; and
1.1.5 “Use” means the ability to access, alter, modify, customize or otherwise benefit from the use and functionality of this product in accordance with this License and accompanying Documentation.
1.2 LICENSE
UpYourImage.com provides you with a product and grants you a non-exclusive license to Use this Product in accord with the terms of this License. Any supplemental artifacts and supporting materials provided to you as part of this License and any support services provided byUpYourImage.com for this Product shall be considered part of the Product and subject to the terms and conditions of this License. The copyright, intellectual property and all other rights to this Product shall remain with UpYourImage.com and its licensors. Any third-party information, intellectual property and copyrighted materials and any derivatives thereof, included with or affiliated with this product, may be subject to other terms and conditions of the owners. To the extent that any third party’s intellectual property is incorporated within this Product, you agree that such third party is a beneficiary of the terms of this License to the extent of any third-party’s license to UpYourImage.com.
1.3 LICENSEE’S MAY
Use one (1) copy of this UpYourImage.com Product.
1.4 LICENSEE MAY NOT
1.4.1 Translate, reverse engineer, decompile, or disassemble this Product except to the extent that this restriction is, by operation of applicable law, prohibited or of no effect.
1.4.2 Rent, lease, assign, sell, sublicense, lend or transfer this Product without the express written of the UpYourImage.com.
1.4.3 Modify this product or merge all or any part of this Product with any other Program or Template;
1.4.4 Redistribute the fonts, images, photographs, graphics, graphs, clipart, formatting or style information included with and associated with this product;
1.4.5 Separate the component parts of this Product for any other Use without the express written consent of UpYourImage.com except to the extent the foregoing restriction is, by operation of applicable law, prohibited or of no effect.
1.4.6 Transfer or assign this Product, any part, copy or derivative thereof, or your License to Use this Product to a third part;
1.4.7 Distribute sound files, if any, included with this Product to third parties or permit Use of the sound file(s), if any, by third parties except as included or embedded with one or more files, to the extent this is possible, created Using this Product.
1.4.8 Reverse engineer, decompile or disassemble the UpYourImage.com Website/Web Page Templates except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
1.5 PRODUCT PATCHES, UPDATES, PLUG-INS, SERVICE PACKS OR UPGRADES
If this Product is or has a patch, update, plug-in, service pack or upgrade or other file that is affiliated with this Product, or that is contained on storage media, the patch, update, plug-in, service pack or upgrade or other file is designed for use with the UpYourImage.com website original templates and is subject to UpYourImage.com's Limited Warranty, Disclaimer and Limitation of Liability and Eligibility providers, if any, as applicable. The Licensee is granted a non-exclusive license to Use such Product only with the original UpYourImage.com website template(s) provided that the user still possess a valid license from UpYourImage.com for the original or a prior version of the UpYourImage.com website template. Except as may be provided herein, the Product is subject to the terms and conditions of the license from UpYourImage.com accompanying the original UpYourImage.com website template License.
1.6 INTELLECTUAL PROPERTY RIGHTS
Except as expressly licensed to you in this License, UpYourImage.com retains all right, title and interest in and to this Product. This Product is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which this Product is being Used. Except as expressly stated herein, the License does not grant you, the Licensee, or any entity on behalf of which you are authorized to act in this regard, any intellectual property rights in this Product. All rights not expressly granted are reserved by UpYourImage.com.
1.7 TERM
This License shall remain in effect only for (six months, a year ) provided that (monthly, quarterly, periodic) valid payment is made to UpYourImage.com according to the terms of this agreement and only so long as and only so long as the Licensee is in compliance with the terms and conditions of this License. This License will terminate if you fail to pay for the Website server and template services you have contracted for or if you fail to comply with any of this License’s terms or conditions. The Licensee agrees, upon termination, to return all property and materials owned and requested by UpYourImage.com and to destroy all other information and material related to this Product. The Intellectual Property Rights, Limited Warranty, Disclaimer and Limitation of Liability provisions set out herein, shall continue in force even after this agreement terminates for any reason.
1.8 LIMITED WARRANTY
Except as may be otherwise provided for in this Agreement, UpYourImage.com warrants to the person or entity that first purchases a license to the UpYourImage.com website templates that this Product will be free from defect in materials and workership for ninety (90) days from the date the license is acquired. If a defect occurs, the licensee and subscriber should make sure that the defect does not exist in their computer hardware and operating system hardware, internet browser, ISP service provider or internet connection first before contracting UpYourImage.com. Once it is determined that the issue is with the UpYourImage.com templates, the licensee and subscriber should contact UpYourImage.com at www.UpYourImage.com.com for assistance. THIS REMEDY IS THE LICENSEE’S EXCLUSIVE REMEDY AND UP YOUR IMAGE AND ITS SUPPLIER’S AND DEALER’S ENTIRE LIABILITY FOR BREACH OF THIS WARRANTY OR, WHERE PERMITTED BY APPLICABLE LAW, FOR ANY OTHER CAUSE OF ACTION (INCLUDING NEGLIGENCE) CONCERNING ANY DEFECT IN MATERIALS OR WORKMANSHIP IN RELATION TO THIS PRODUCT. THIS LIMITED WARRANTY GIVES THE LICENSEE CERTAIN LEGAL RIGHTS. THE LICENSEE AND SUBSCRIBER MAY HAVE ADDITIONAL LEGISLATED RIGHTS WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. LICENSEE AGREES THAT ANY CLAIMS LICENSEE BRINGS AGAINST UP YOUR IMAGE RELATED TO THIS LICENSE, UP YOUR IMAGE PRODUCT AND/OR UP YOUR IMAGE WEBSITE TEMPLATE, WILL BE ARBITRATED AND/OR ADJUDICATED IN THE STATE OF MASSACHUSETTS OR THE STATE OF NEW YORK, AT THE DISCRETION OF THE LICENSEE.
1.9 DISCLAIMER
EXCEPT FOR THE EXPRESS, LIMITED WARRANTY IN SECTION 1.8 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 THE LICENSEE IN THE LICENSEE’S JURISDICTION, THE UP YOUR IMAGE PRODUCTIS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY LAW, STATUTE, USAGE OR TRADE, COURSE OF DEALING OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO. WARRANTIES OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UP YOUR IMAGE AND ITS SUPPLIER’S AND DEALER’S DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS THE LICENSEE MAY OBTAIN BY USING THIS PRODUCT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THIS PRODUCT IS ASSUMED BY YOU, THE LICENSEE OR THE ENTITY ON WHOSE BEHALF YOU HAVE PURCHASED THIS LICENSE. WHERE ANY NON-EXCLUDABLE TERMS ARE IMPLIED INTO THIS LICENSE BY OPERATION OF LAW, TO THE EXTENT PERMISSIBLE BY LAW, UP YOUR IMAGE LIMITS ITS LIABILITY TO, AT ITS OPTION, THE REPAIR AND REPLACEMENT OF THE PRODUCT, THE RE-SUPPLY OF EQUIVALENT PRODUCT, OR THE COST THEREOF.
1.10 LIMITATION OF LIABILITY
SUBJECT TO THE EXPRESS LIMITED WARRANTY ABOVE, IN NO EVENT WILL UP YOUR IMAGE, ITS DEALERS OR SUPPLIERS BE LIABLE TO YOU, THE LICENSEE, OR THE ENTITY ON WHOSE BEHALF YOU HAVE PURCHASED THIS LICENSE, 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, SPECAIL, OR CONSEQUENTIAL DAMAGES SHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF AN UP YOUR IMAGE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. UP YOUR IMAGE IS ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. IN THE EVENT THAT THE ABOVE LIMITATION OF LIABILITY IS NOT VALID IN THE LICENSEE’S JURISDICTION, UP YOUR IMAGE MAXIMUM AGGREGATE LIABILITY AND THAT OF UP YOUR IMAGE DEALERS AND SUPPLIERS SHALL NOT EXCEED THE AMOUNT PAID BY THE LICENSEE 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 THE LICENSEE’S JURISDICTION. UP YOUR IMAGE IS ACTION 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.
1.11 EXPORT CONTROLS
In the event this Product is identified as a not-for-export product by the Government of the United States, then, unless the licensee has an exemption from the United States Department of Commerce or other regulatory authority as designated from time to time, the following applies: Except for export to Canada or Use in Canada by Canadian residents, this Product may not be exported outside of the United States or to any foreign entity or “foreign person” as defined by the U.S. government regulations, including without limitation, anyone who is not a citizen, national or lawful permanent resident of the United States. By agreeing to the terms of this License, the Licensee is warranting to UpYourImage.com that the Licensee is not a “foreign person” or under the control of a “foreign person.”
1.12 ELIGIBILITY
To be eligible to Use this Product, you must be in compliance with applicable export laws. You may only install and Use this Product if:
(i) your are not a citizen, national or resident of, and are not under the control of, the government of Cuba, Iran, Libya, North Korea, Sudan, Syria, nor any other country to which the United States has prohibited export, use or control;
(ii) you will not use or otherwise export or re-export this Product, directly or indirectly, to the countries mentioned in clause (I) immediately above, nor to citizens, nationals or residents of those countries;
(iii) you are not listed in the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor are you listed on the United States Department of Commerce Table of Denial Orders;
(iv) you will not Use or otherwise export or re-export this Product, directly or indirectly, to persons on the lists mentioned in clause (iii); and
(v) you will not Use this Product for, and will not allow the Product to be Used for, any purposes prohibited by the United States law, including without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction.
IF YOU ARE NOT IN COMPLIANCE WITH THE ABOVE STATEMENTS, YOU ARE NOT ELIGIBLE TO USE THIS PRODUCT.
1.13 GENERAL: ENTIRE AGREEMENT
This License is the entire agreement between you and UpYourImage.com, superseding any other agreement or discussions, representations or advertising, oral or written, other than a separate, valid, existing and applicable license agreement entered into between you and UpYourImage.com or any of its subsidiaries (the “Other License”) in which case that Other License governs to the extent of any inconsistency between this License and that Other License. This License may be modified only by a written document signed by an authorized Officer of UpYourImage.com. This License shall be governed and construed in accordance with the laws of the United States, and the parties agree to submit to the exclusive jurisdiction of the courts of the State of Massachusetts or New York, where permitted by applicable law, unless there is an Other License, in which case the choice of law and jurisdiction specified in that Other License shall prevail. This License specifically excludes
(i) that body of law applicable to choice of law, and
(ii) the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention, if otherwise applicable.
If any provision of this License is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be severed from this License and other provisions shall remain in full force and effect. Except as expressly set forth herein to the extent permitted by applicable law, this License shall not prejudice the non-excludable, statutory rights of any party. The Licensee agrees that this Agreement an all documents contemplated hereby be drawn up in English.
1.14 COMPLIANCE WITH LICENSES:
If you, the licensee, are a business or organization, you agree that upon request from UpYourImage.com or UpYourImage.com's authorized representative, you will within thirty (30) days fully document and certify that Use of any and all UpYourImage.com products at the time of the request is in conformity with your valid licenses from UpYourImage.com.
1.15 ACTIVATION, REGISTRATION, MARKETING, PRIVACY AND DATA COLLECTION
Except as expressly limited by applicable law, licensee agrees that:
(a) To protect UpYourImage.com's Intellectual and other property rights, this Product may require mandatory activation. Your license and ability to Use this Product is contingent upon licensee’s successfully completing the activation process and providing UpYourImage.com with accurate information as required by such process;
(b) To protect UpYourImage.com's Intellectual and other property rights, this Product may required mandatory registration. Your license and ability to Use this Product is contingent upon successful completion of the registration process and providing UpYourImage.com with accurate information as required by such process; and
(c) UpYourImage.com may provide you the licensee, with product and marketing information regarding this Product and other UpYourImage.com, and UpYourImage.com third-party marketing partners’, products and services. Specifically, you, the licensee, acknowledge and agree that UpYourImage.com may monitor the licensee’s Use of the Product, and collect, use, and share with UpYourImage.com's third party marketing partners, data relating to your Use of the Product for advertising, marketing and operational purposes, all in accordance with UpYourImage.com's Privacy Policy located at www.Up Your Image.com/privacy. Use of the Product constitutes consent to such monitoring and data collection, and to receipt of in-Product and other messages from UpYourImage.com and its third party marketing partners.
If you fail to activate or register a Product which requires mandatory activation or registration in the amount of time specified by UpYourImage.com, you will be unable to Use this Product and your License to Use this Product will be suspended until such time as you promptly complete the activation and/or registration process. Any attempt to circumvent the activation or registration technology or other mechanism contained within the Product is a violation of this License and shall result in the automatic and immediate termination of your License to Use the Product.
2. LICENSE GRANT FOR REMOTE ASSISTANCE – USE OF CLIPART, GRAPHICS, PHOTO IMAGES AND SAMPLE CONTENT.
UpYourImage.com Website/Web Page Templates may include or contain certain photographs, clipart, photo images, shapes, animations, sounds, music, video clips and sample content which may be identified in the Templates (together the “Media Elements) and which may be owned by UpYourImage.com or licensed from some other third party. As a user of UpYourImage.com Products you may be permitted to Use and copy these Media Elements items subject to the restrictions set out below.
UpYourImage.com urges licensees to seek the advice of own attorney or legal counsel with regard to such uses. UpYourImage.com will not provide you, the licensee, with an opinion of whether your use is in compliance with these guidelines, the copyright laws of the United States, or international copyright laws
2.1 YOU MAY, subject to any restrictions set out elsewhere below
(a) Incorporate Media Elements into the UpYourImage.com templates and you may copy and modify these Media Elements, and display and/or distribute these Media Elements, along with your modifications, provided
(i) Media Elements incorporated into the UpYourImage.com templates are your personal property;
(ii) you, the user or licensee, have received written permission from the owner or copyright holder, if any, of any Media Elements you have incorporated into your personal website or web page.
(b) Incorporate UpYourImage.com owned Media Elements into your own original work and publish, display and distribute your work in any media, provided
(i) you include a copyright notice in your work reflecting on the copyright ownership of both you and UpYourImage.com as follows:
“Copyright (c) 200__ [your name] and its licensors. All rights reserved.” and
(ii) you make one (1) copy of the Media Elements for backup or archival purposes.
(iii) you indemnify and defend UpYourImage.com from an against any claims or lawsuits, including attorneys’ fees that arise from or result from the licensing, use or distribution of Media Elements as modified by you.
2.2 YOU, THE LICENSEE, MAY NOT
(a) sell, license or distribute copies of the Media Elements by themselves or as part of any collection, product or service if the primary value of the product or service if in the Media Elements;
(b) resell, sublicense or otherwise make available the Media Elements for Use or distribution separately or detached from a product or web page. For example, the Media Elements may be Used as part of a web page design, but not be made available for downloading separately or in a format designed or intended for permanent storage or re-use by others;
(c) may not grant customers of your UpYourImage.com website or web page(s) product or service any rights to license or distribute the Media Elements or to provide the Media Elements to third parties or permit the Use of the Media Elements by third parties separately or as part of any other product, however, third parties may be provided with copies of the Media Elements (including any digital files or subfiles) as part of a work product for you personal use or uses;
(d) You may not license or distribute any of the Media Elements that include representations of identifiable individuals, governments, logos, initials, emblems, trademarks, or entities for any commercial purposes or to express or imply any endorsement or association with any product service, entity, or activity;
(e) create scandalous, obscene, defamatory, salacious or immoral works using the Media Elements, as defined by federal law at the time the work is created, nor Use the Media Elements for any other purpose which is prohibited by law;
(f) Use or permit the Use of the Media Elements or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Media Elements or any part thereof;
(g) Use any of the Media Elements which contain identifiable individuals or entities for any commercial purpose including, without limitation, in a manner which suggests their association with or endorsement of any product or service;
(g) Use the Media Elements in electronic format, on-line or in multimedia applications unless the Media Elements are incorporated for viewing purposes only and no permission is given or granted to download and/or save the Media Elements for any reason;
(h) rent, lease, sublicense or lend the Media Elements, or a copy thereof, to another person or legal entity. You may, however, transfer all your license to Use the Media Elements to another person or legal entity, provided that
(i) you, the licensee, transfer the Product, including the Media Elements, and this License, including all copies (except copies incorporated into your work product as permitted under this License), to such person or entity,
(ii) that you retain no copies, including copies stored on a computer or other storage device, and
(iii) the receiving party agrees in writing before the transfer to be bound by the terms and conditions of this License; or
(i) Use any Media Elements except as expressly permitted by this License.
2.3 GOVERNMENT CRESTS, SEALS AND OTHER INSIGNIA:
Any national and/or municipal insignia contained in this product are protected by various laws against misuse. Generally speaking, all logos, insignia, patches, seals, flags and coats of arms are for official use only. It is your responsibility as the Licensee to obey all national and international laws regulating displace of the insignia, seals, flags and costs of arms contained herein.
3. LINKS TO THIRD PARTY SITES
UpYourImage.com is not responsible for the content of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. UpYourImage.com provides these links and access to third-party sites and services to the licensee only as a convenience, and the inclusion of any link or access does not imply an endorsement by UpYourImage.com of the third-party site or service.
4. RESERVATION OF RIGHTS AND OWNERSHIP
UpYourImage.com reserves all rights not expressly granted to you, the licensee, in this EULA. The UpYourImage.com Website/Web Page Templates are protected by copyright and other intellectual property laws and treaties. UpYourImage.com or its suppliers and contractors own the title, copyright, and other intellectual property rights used in the creation, development and maintenance of the UpYourImage.com Templates. The UpYourImage.com Website/Web page Templates are licensed to you, not sold. This EULA does not grant you any rights to trademarks, service marks or copyrights owned and displayed by UpYourImage.com, its suppliers and contractors.
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