Software And/Or Hardware License Agreement (hereinafter: “Agreement”)

USE OF ALL PRODUCTS IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE PLACING AN ORDER AND USING THE PRODUCTS. ANY PAYMENT OR DEPOSIT INDICATES CUSTOMER’S COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.

This is a legal agreement concerning the use of Products (as defined in Section 1) between the buyer how acquiring the Products (hereinafter: “Customer”), and the Foto Master or any of its representative (hereinafter: “Foto Master”). Except for license agreements related to the subject matter of this license agreement which are physically signed by Customer and an authorized representative of Foto Master, this Agreement and the applicable quotation contain the parties’ entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements.

  1. Definitions as used in this Agreement and any applicable quotation, supplement, attachment and/or addendum (hereinafter: “Addenda”), these terms shall have the following meanings:
    1. Software” means software programs and/or license key (a code provided which enables the software to operate for the specified Licensed Configuration), and/or Development Tools, including any updates, modifications, revisions, copies, videos, photos, animations, design assets, content, documentation and design data that are licensed under this Agreement which will be provide by Foto Master;
    2. Hardware” means any system or sub-system and associated documentation;
    3. Customer’s Product” means any software license and/or any hardware which have been sold to the Customer by Foto Master in an applicable Addenda that is developed, manufactured, branded and shipped to the Customer or an authorized manufacturer or subcontractor or supplier or distributor on behalf of Foto Master to the Customer;
  2. Orders, Fees, Payment and Return Policy.
    1. To the Customer and Foto Master accepts purchase orders pursuant to this Agreement (“Order(s)”), each Order will constitute a contract between Customer and Foto Master, which shall be governed by the terms and conditions of this Agreement and any applicable Addenda, whether or not these documents are referenced on the Order. Any additional or conflicting terms and conditions appearing on an Order will not be effective unless agreed in writing by an authorized representative of the Customer and Foto Master.
    2. All Products Amount invoiced will be paid, in the currency specified on the applicable invoice, or at a PayPal link and prepaid as a primary condition for Product delivery/ supply to the customer.
    3. An optional software License renewals fees will be 10% of the software license cost to obtain additional year of upgrades and support.
    4. Deposits are non refundable deposits.
    5. Fully paid invoices are non refundable.
    6. Shipped products can’t be returned.
  3. Grant of License.
    1. The Products installed, downloaded, or otherwise acquired by Customer under this Agreement constitute or contain copyrighted, trade secret, proprietary and confidential information of Foto Master or its licensors, who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. Foto Master grants to Customer, subject to payment of applicable license fees, a non transferable,, non resellable license to use Software as described in the Invoice. The limited licenses granted under the Invoice shall continue until the termination in accordance with Section 9 below,. Foto Master does NOT grant Customer any right to (a) sublicense or (b) use Software beyond the scope of this Section without first signing a separate agreement or Addenda with Foto Master for such purpose.
    2. A Customer may install and use the Software by a single user who uses the Software on up to one computer which is in use at any one time.
  4. Restrictions on Use.
    1. Customer acknowledges that the Products provided contain Source Code which is proprietary and its confidentiality is of the highest importance and value to Foto Master. Customer acknowledges that Foto Master may be seriously harmed if such Source Code is disclosed in violation of this Agreement. Except as otherwise permitted for purposes of interoperability as specified by applicable and mandatory construed under the laws according Section 12 below , Customer shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive any Source Code from Products that are not provided in Source Code form. In no event shall Customer provide Products to Foto Master competitors. Log files, data files, rule files and script files generated by or for the Software (collectively “Files”) and/or the hardware constitute and/or include confidential information of Foto Master. Under no circumstances shall Customer use Products or allow their use for the purpose of developing, enhancing or marketing any product that is in any way competitive with Products, or disclose to any third party the results of, or information pertaining to, any benchmark.
    2. Customer may not assign this Agreement or the rights and duties under it, or relocate, sublicense or otherwise transfer the Products, whether by operation of law or otherwise (“Attempted Transfer”), without Foto Master’ prior written consent. Any Attempted Transfer without Foto Master’ prior written consent shall be a material breach of this Agreement and May, at Foto Master’ option, result in the immediate termination of the Agreement and/or compensation multiplied by the value of the acquisition.
    3. Notwithstanding at any Customers violation – he may not use any Foto Master trademark.
      The provisions of this Section shall survive the termination of this Agreement.
  5. Support Services.
    1. Unless otherwise specified in any applicable Addenda to this Agreement, to the extent Customer purchases support services, Foto Master will provide technical support at support@fotomasterltd.com.
  6. Limited Warranty.
    1. Foto Master warrants that during the warranty period its standard, generally supported Products, when properly installed, will substantially conform to the functional specifications set forth in the applicable user manual and/or specification. Foto Master does not warrant that Products will meet Customer’s requirements or that operation of Products will be uninterrupted or error free. Foto Master will assignment all its debts and rights of all applicable third party including warranties to the Customer . . Customer must notify Foto Master in writing of any nonconformity within the warranty period. For the avoidance of doubt, this warranty applies only to the initial shipment of Products under an Order and does not renew or reset, for example, with the delivery of (a) Software updates or (b) authorization codes. This warranty shall not be valid if Products have been subject to misuse, unauthorized modification or improper installation. FOTO MASTER’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY SHALL BE, AT FOTO MASTER’ OPTION, EITHER (A) REFUND OF THE PRICE PAID UPON RETURN OF THE PRODUCTS TO FOTO MASTER OR (B) MODIFICATION OR REPLACEMENT OF THE PRODUCTS THAT DO NOT MEET THIS LIMITED WARRANTY, PROVIDED CUSTOMER HAS OTHERWISE COMPLIED WITH THIS AGREEMENT. FOTO MASTER MAKES NO WARRANTIES WITH RESPECT TO: (A) SERVICES; OR (B) PRODUCTS PROVIDED AT NO CHARGE, OR SOFTWARE FUNCTION WHICH ARE PROVIDED “AS IS” UNLESS OTHERWISE AGREED IN WRITING.
    2. THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE TO CUSTOMER AND DO NOT APPLY TO ANY END-USER. NEITHER FOTO MASTER NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO PRODUCTS OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. FOTO MASTER AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
  7. LIMITATION OF LIABILITY. EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE LAW, AND EXCEPT FOR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, CUSTOMER’S BREACH OF LICENSING TERMS OR CUSTOMER’S OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL: (A) FOTO MASTER OR ITS RESPECTIVE LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) FOTO MASTER OR ITS RESPECTIVE LICENSORS’ LIABILITY UNDER THIS AGREEMENT, INCLUDING, FOR THE AVOIDANCE OF DOUBT, LIABILITY FOR ATTORNEYS’ FEES OR COSTS, EXCEED THE GREATER OF THE FEES PAID TO FOTO MASTER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN THE CASE WHERE NO AMOUNT WAS PAID, FOTO MASTER AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
  8. Hazardous Applications.
    1. Customer agrees that Foto Master has no control over Customer’s testing or the specific applications and use that Customer will make of Products.
    2. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS FOTO MASTER AND ITS LICENSORS FROM ANY CLAIMS, LOSS, COST, DAMAGE, EXPENSE OR LIABILITY, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF PRODUCTS AS DESCRIBED IN THIS AGREEMENT.
    3. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
  9. Termination and Effect of Termination. If a Software license was provided for limited term use, such license will automatically terminate at the end of the authorized Term.
    1. Termination for Breach. This Agreement shall remain in effect until terminated in accordance with its terms. Foto Master may terminate this Agreement and/or any licenses granted under this Agreement, and Customer will immediately discontinue use and distribution of Products, if Customer (a) commits any material breach of any provision of this Agreement and fails to cure such breach upon 30-days prior written notice; or (b) becomes insolvent, files a bankruptcy petition, institutes proceedings for liquidation or winding up or enters into an agreement to assign its assets for the benefit of creditors. Termination of this Agreement or any license granted hereunder will not affect Customer’s obligation to pay for Products shipped or licenses granted prior to the termination, which amounts shall be payable immediately upon the date of termination. For the avoidance of doubt, nothing in this Section 9 shall be construed to prevent Foto Master from seeking immediate injunctive relief in the event of any threatened or actual breach of Customer’s obligations hereunder.
    2. Effect of Termination. Upon termination of this Agreement, the rights and obligations of the parties shall cease except as expressly set forth in this Agreement. Upon termination or expiration of the Term, Customer will discontinue use and/or distribution of Products, and shall return Hardware and either return to Foto Master or destroy Software in Customer’s possession, including all copies and documentation, and certify in writing to Foto Master within 10 (ten) business days of the termination date that Customer no longer possesses any of the affected Products or copies of Software in any form. Upon termination for Customer’s breach, an End-User may continue its use and/or distribution of Customer’s Product so long as: (a) the End-User was licensed according to the terms of this Agreement, if applicable to such End-User, and (b) such End-User is not in breach of its agreement, if applicable, nor a party to Customer’s breach.
  10. Third Party Beneficiary. For any Products licensed under this Agreement and provided by Customer to End-Users, Foto Master or the applicable licensor is a third party beneficiary of the agreement between Customer and End-User. Foto Master Corporation, distributors, and other licensors may be third party beneficiaries of this Agreement with the right to enforce the obligations set forth herein.
  11. Fees. All fees are exclusive of value added taxes, sales taxes, use taxes, withholding taxes and similar taxes which will be borne by the customer, except for taxes based on Foto Master’s net income.
  12. Controlling Law, Jurisdiction and Dispute Resolution. This Agreement shall be governed by and construed under the laws of Israel. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of Israel state. Nothing in this section shall restrict Foto Master’ right to bring an action (including for example a motion for injunctive relief) against Customer or its Subsidiary in the jurisdiction where Customer’s or its Subsidiary’s place of business is located.
    Any claim or matter against Foto Master pertaining to this Agreement and/or arising hereform, shall be exclusively within the jurisdiction of the competent courts in Israel and under the Israeli law.
  13. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.
  14. Miscellaneous. This Agreement contains the parties’ entire understanding relating to its subject matter and supersedes all prior or contemporaneous agreements, including but not limited to any purchase order terms and conditions. This Agreement may only be modified in writing, signed by an authorized representative of each party. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse.
  15. Any purchase of upgrades shall be subject to this Agreement, unless otherwise indicated by Foto Master.

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