SOFTWARE AND/OR HARDWARE LICENSE AGREEMENT (hereinafter: “Agreement”)
BY PURCHASING OR USING A FOTO MASTER PRODUCT, SOFTWARE OR SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS TO THEIR FULLEST EXTENT.
This Agreement constitutes the legal contract between the party who purchases or otherwise receives Product(s) and/or the Software (hereinafter: “Customer” or “you”), and Foto Master Ltd and its affiliated corporations and subsidiaries worldwide (hereinafter: “Foto Master”) (collectively: “the parties”). This Agreement, together with any other agreements, licenses or policies published by Foto Master on its official website at www.fotomasterltd.net (collectively: “Foto Master Policies”) govern all purchases and use of Product(s) and Software by the Customer.
- Definitions as used in this Agreement and any applicable quotation, supplement, attachment and/or addendum (hereinafter: “Addenda”):
- “Software” means any software program and/or supplementing tools or features for a software program provided or developed by Foto Master, whether pre-loaded on the Product or provided separately, including any related or licensed materials thereof.
- “Software License” means a licence granted to the Customer by Foto Master for utilizing the Software, subject to the terms of this Agreement, the End User License Agreement and other Foto Master Policies, where applicable.
- “Hardware” means a hardware provided to Customer by Foto Master.
- “Product” means a package of Hardware and Software provided to the Customer.
- “Customer’s Marketing Materials” means marketing or promotional materials (e.g. photos, videos, etc.) created by the Customer and include photos and/or videos (or any part of them) of Software animations, graphic elements, products, designs, trademarks, logos or any other proprietary asset of Foto Master.
- “Foto Master’s Marketing Materials” means marketing or promotional materials (e.g. photos, videos, etc.) created or licensed by Foto Master.
- Orders, Payment and Warranty Policy.
- Each purchase order (“Order”) submitted by the Customer and received by Foto Master will constitute a legal 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 will not be effective unless agreed in writing by Foto Master.
- All due amounts invoiced will be paid in the currency specified on the applicable invoice, and prepaid by the Customer as a primary condition before any Product delivery or Software License supply to the Customer. The Customer will bear any costs, charges and expenses associated with the shipping, purchase and delivery of the Product, including all country, provincial, government, state and local sales, use, goods and services, value added, excise, privilege and similar levies or taxes.
- All purchase orders, transactions, Products, deposits and paid invoices are non refundable and non cancellable and non returnable for any reason whatsoever. The Customer acknowledges that the Product is a custom made product, and once a purchase order is submitted, Foto Master invests time, money and workmanship in producing and delivering the ordered Product.
- The only conditions of warranty apply to the Hardware are those which are set out in the Foto Master Limited Warranty Policy. For more information please view our Limited Warranty Policy here. Any other warranties or representations are expressly excluded and shall have no effect.
- The Software is expressly excluded from any warranty granted by the Foto Master.
- Customers may choose , at their sole discretion, to use services provided by certain financing companies in order to complete the purchase order. It is hereby clarified that Foto Master has no control or liability over those companies services or practices, and the Customer assumes all risks associated with the use of such services.
- The Customer may have an option to obtain a subscription term of upgrades and support to his Product on a yearly basis, subject to payment of renewal fees (“Renewal Fees”). The Renewal Fees will be paid through Foto Master’s payment processor(s) (e.g. PayPal), and are subject to their terms and conditions. The Renewal Fees are non-refundable.
- The Renewal Fees may be changed from time to time, as per Foto Master’s sole discretion.
- In order to ensure that Customers will not experience any interruption or loss of continuation of our services, the Renewal Fees may automatically renew at the end of the subscription term, by default. Customers will be able to terminate the auto-renewal option prior to the expiration of the renewal term, by changing its account setting at the payment processor platform.
- Foto Master makes efforts to provide the Customer with Products within a reasonable time. However, it is hereby clarified and agreed by the parties that any dates provided by Foto Master to the Customer for the delivery or shipping of the Products are estimates only and will not form part of any agreement between the parties. Actual delivery or shipping date may be affected by various factors such as payments to be paid, Customer’s location, availability of parts or components for the Product, and Force Majeure Events. Foto Master shall not be liable for any delay in delivery or shipping of the products, including for any damages or losses related thereto, for whatsoever reason and to the extent permitted by applicable law. Without derogating from the above, Foto Master shall not be obligated to provide the Customer with any discounts, compensations or refunds for the delay.
- The parties agree that to the extent permitted by law, any delay in delivery or shipping of Products will not constitute a valid reason for cancelling the transaction by the Customer, or requesting a refund.
- Foto Master will make efforts to inform the Customer of any expected delay in the delivery.
- Ownership and Software License.
- All copyright and all other intellectual property rights of whatever nature in the Product and the Software shall fully vest in the Foto Master.
- The Software installed, downloaded, or otherwise received by Customer may contain copyrighted materials, trade secrets, know-how information, trademarks, patents or patentable materials, designs, proprietary materials and confidential information of Foto Master or its licensors (hereinunder: “Protected Materials”). Foto Master retains exclusively all title and interest to and in the Software and the Protected Materials, and does not grant to Customer or other third party any rights not expressly granted by this Agreement.
- Foto Master grants to Customer, subject to the fulfilment of all due payments for the Product, a time limited, non exclusive, non transferable, non resellable, non assignable and non sublicensable license to use the Software subject to the terms and conditions of this Agreement and the End User License Agreement available for review here. This limited license shall continue to be in force until the termination of this Agreement or the End User License Agreement.
- A Customer may install and use the Software on one device only and operate it by its own or authorized personnel. Customers are not allowed to use the Software on more than one device.
- The Software may contain open source code which is available pursuant to the relevant open source licenses or documentation.
- Restrictions on Use.
- The Software is licensed to the Customer for a limited time, not sold.Accordingly, the Customer has no right to sell, lease, transfer or otherwise assign the Software or the Software License to any third parties, and such an action shall have no effect whatsoever.
- The Customer shall not relicense, copy, modify, enhance, make errors corrections to, create derivative or similar works based on, decompile, decrypt, reverse engineer, or disassemble the Software, including any database or other materials connected thereof, or permit any third party to do such actions. The Customer shall not distribute or use the Software in any manner other than as authorized to him in accordance with this Agreement or the End User License Agreement or as expressly agreed in writing by Foto Master.
- Customer acknowledges that Product(s) or Software may contain a proprietary source code whose 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 to any third party in violation of this Agreement or the End User License Agreement. Customer shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive or copy any source code from Products or Software. In no event shall Customer expose the Software to Foto Master competitors or other parties interested to act unlawfully. Log files, data files, rule files and script files generated by or for the Software constitute and/or may include confidential information of Foto Master.
- Under no circumstances shall the Customer use, distribute or otherwise disclose Products or Software or allow others to use, distribute or disclose them for the purpose of developing, manufacturing, enhancing or marketing, either by the Customer or other third party, any product or software that is in any way competitive or similar with products or software of Foto Master.
- Customer shall not alter, remove, conceal or deface any copyright, or other proprietary identification which indicates the ownership, brand, or logo of the Software or the Hardware Product.
- To the extent permitted by applicable law, Customer shall immediately refrain, upon Foto Master first request, from any distributing, selling, or leasing Customer Materials to any third party which is (i) competing with Foto Master’s business; and/or (ii) damaging Foto Master’s rights or assets in any other way.
- Any other restrictions set out in the Foto Master Policies shall be in full effect, and nothing in this Agreement may be interpreted as a conflict to such additional restrictions.
- Customer’s Marketing Materials
- Customer agrees to grant Foto Master and its representatives an unlimited, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, distribute, modify and publicly display any Customer’s Materials for its own marketing and promotional purposes. The Customer agrees that the Customer’s Materials are free of any copyright infringement or other violations of third party’s rights, and that any participants filmed thereof have consented to be included in such marketing materials, and waived their right for publicity.
- The Customer agrees to not use any photos or videos of Foto Master’s proprietary assets (including Software animations, Products, designs, etc.) in promoting or marketing competitive products or services to Foto Master, and to immediately cease from doing so when receiving a notification from Foto Master in this regard.
- Foto Master’s Marketing Materials
- The Customer may be entitled to use Foto Master’s Marketing Materials, available to him as part of the purchase package. However, it is clarified that the Customer assumes all risks related to his use of the Foto Master’s Marketing Materials, including with respect to copyrights and the right of publicity. The Customer agrees to release Foto Master from any and all claims and allegations, of any kind and nature, associated with his use of the Foto Master’s Marketing Materials. Foto Master reserves its right to stop the Customer from using the Foto Master’s Marketing Materials in any case it deems that such use may violate Foto Master’s rights or commercial interests, or violate any third party’s rights.
- Support Services.
- Unless otherwise specified in any applicable Addenda to this Agreement and subject to the terms set out in the Foto Master Policies, Foto Master will provide the Customer with a technical support for the Product, either online or by phone. For more details, please contact Foto Master at firstname.lastname@example.org.
- Foto Master may provide the Customer with a remote support directly on his (or his authorized personnel) device. The remote support will enable Foto Master to remotely access Customer’s device in order to solve certain issues related to the use or the operation of the Software and associated materials.
- The Customer understands and agrees that by allowing Foto Master to remotely support his device, it may be able to access any unencrypted content displayed on the device, including open files and folders. However, Foto Master will make its best efforts to prevent from accessing and viewing any content, information or data installed or displayed on the device that is not relevant or necessary to perform the support service. Therefore, Foto Master strongly recommends the Customer to (1) close any personal or confidential information on Customer’s screen before the remote support session begins, in order to reduce the chances of these materials to be exposed to the support staff member, and (2) backing up all the important content or data on the device.
- The Customer expressly assumes all risks associated with such a remote session. Foto Master is not liable for any damages or losses of any kind or nature, resulting out of or in connection with the remote support session, including with respect to data or content loss or other damages caused to the device and software included thereof.
- Foto Master makes no representation and cannot guarantee that the support assistance will solve all the required issues or that the attempt to solve these issues will not end up in additional or new issues to be solved.
- The remote support session may be provided through the services or platforms provided by Teamviewer company, whose additional terms applicable to the remote session may be viewed at https://www.teamviewer.com/en/eula/.
- Experimental Services.
- Foto Master may release, from time to time, certain features, beta servers or services that are still under testing or evaluation (“Experimental Services”). Experimental Services may not be as reliable as the regular Foto Master’s services, and are generally designed to collect user feedback and comments. Experimental Services are confidential and are not designated for operation in open – to – public events.
- THE CUSTOMER ASSUMES ALL RISKS AND COSTS ASSOCIATED WITH HIS USING OF THE EXPERIMENTAL SERVICES, INCLUDING, WITHOUT LIMITATION, ANY BACKUP EXPENSES AND ANY DIRECT OR INDIRECT LOSSES OR DAMAGE RELATED TO EQUIPMENT, SOFTWARE, INFORMATION, CONTENT OR DATA OF ANY KIND OR NATURE.
- The Customer agrees that his use of the Experimental Services will be free of any infringing or illegal materials or content
- Foto Master may stop providing the option to use the Experimental Services at any time and for any reason.
- The Experimental Services are provided on the basis of “AS-IS” and “AS – AVAILABLE”, and Foto Master makes no warranties or representation of any kind that the Experimental Services: (1) will meet Customer or other third party secure requirements, expectations or purposes; and (2) will be uninterrupted , timely, secure or free from errors, delays, omission, interruption or defects of any kind or nature; Foto Mater makes no guarantee or representation that any content uploaded or stored on the Experimental Services will be backed up, recoverable or reproducible in any manner.
- Cloud Services
- Limited Warranty.
- ALL WARRANTIES, GUARANTEES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, PRODUCT AND SERVICES OTHER THAN THOSE WHICH ARE SPECIFICALLY DETAILED IN THE LIMITED WARRANTY POLICY OF FOTO MASTER, ARE EXPRESSLY INVALID AND SHALL HAVE NO EFFECT. THE PRODUCT, THE SOFTWARE, AND ANY SERVICES, INCLUDING THE SUPPORT SERVICE, ARE PROVIDED TO THE CUSTOMER ON “AS-IS” AND “AS-AVAILABLE” BASIS.
- THE WARRANTIES SET FORTH OR REFERRED TO IN THIS AGREEMENT ARE EXCLUSIVE TO CUSTOMER WHO PURCHASED THE PRODUCT DIRECTLY FROM FOTO MASTER AND DO NOT APPLY TO ANY END-USER OR OTHER THIRD PARTY. NEITHER FOTO MASTER NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO PRODUCTS, SOFTWARE 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.
- Interfacing With Third Party’s Platforms.
- Foto Master has no control over the availability or accessibility of the Software, including with respect to its interfacing with certain third party’s platforms (e.g.,App Store, Google Play, etc). Foto Master bears no liability for any direct or indirect loss or damage arising out of or in connection with any action taken by such third party platforms with respect to the Software, including but not limited to (a) removing the Software from third party’s platforms; and/or (b) limiting or preventing the accessibility of the Costumer to the Software, for whatsoever reason; and/or (c) taking any other action ceasing the availability of the Software on the third party’s platform. In the event that the Software is limited on or removed from third party’s platforms, Foto master may make reasonable efforts to bring back the availability and/or accessibility of the Software on the third party’s platform, but it does not guarantee for the success of such efforts.
- Foto Master bears no responsibility for any deactivating and/or unavailability and/or impairing of any feature or configuration of the Software interfacing with or depending on Third Party Systems.
- An event occurring as described in this Section shall not grant the Customer any right to request a refund or cancel a transaction he made with Foto Master, unless expressly agreed in writing by Foto Master.
- Limitation of Liability
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOTO MASTER OR ITS RESPECTIVE AFFILIATES, EMPLOYEES, MANAGERS AND LICENSORS BE LIABLE TO THE CUSTOMER OR OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST OF PROFITS, SAVINGS AND TIMER OR EXISTENCE OF GRIEF, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, PRODUCT OR SERVICE FOR WHATSOEVER REASON, WHETHER SUCH DAMAGES OR LOSSES ARE BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND EVEN IF SUCH THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING A LEGAL AUTHORITY DETERMINES TO IMPOSE LIABILITY UPON FOTO MASTER, THE PARTIES AGREE THAT THE MAXIMUM AMOUNT WHICH FOTO MASTER WILL BE LIABLE FOR SHALL NOT EXCEED THE PAYMENT MADE BY THE CUSTOMER TO FOTO MASTER FOR THE PURCHASE OF THE PRODUCT OR FOR THE LICENSE OF THE SOFTWARE, WHERE APPLICABLE.
- Force Majeure
- Foto Master shall not be liable for its obligations hereunder, including delays in delivery or shipping or non performance of production by reason of circumstances beyond its control, including without limitation, act of war, act of God, earthquake, hurricane, epidemic, tornado, fire, flood or other catastrophic, unpredictable events (e.g., failure of third parties to perform their contractual obligations towards Foto Master) or natural event preventing Foto Master from performing its obligations hereunder (hereinafter: “Force Majeure Event”). Such delay or non-performance shall be excused and a reasonable time for performance and delivery in connection with this Agreement shall be extended to include the period of such delay or non-performance. Without derogating from the above.
- It is hereby clarified and agreed that in the event of Force Majeure Event, whether caused to Foto Master or to the Customer, all deposits, paid invoices and other payments are non refundable and non cancellable, and all due amounts shall continue to be valid to their fullest extent.
- The Customer shall keep in strict confidence all confidential information related to the Product or Software, including without limitation, know-how, trade secrets, technology information, software, internal information, specifications, inventions, processes or any other information which a reasonable person may consider as “confidential”, and will not disclose it to any third party without the prior written consent of Foto Master.
- Risk and Indemnification
- Foto Master has no control or responsibility for the operation of the Product by the Customer, and all consequences arising from such operation are solely at the Customer’s responsibility.
- CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS FOTO MASTER AND ITS AFFILIATES FROM ANY CLAIMS, LOSS, COSTS, DAMAGE, EXPENSE OR LIABILITY, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT BY THE CUSTOMER OR ANY OTHER PARTY ACTING ON HIS BEHALF.
- THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- Title to and risk in the Product (Excluding the Software) passes to the Customer upon delivery of the Products to the Customer, and fulfillment of all payments and due amounts to Foto Master. Title to the Software (and all related materials) shall remain in full with Foto Master at all times. Notwithstanding the foregoing, in the event that the payments for the Product are divided into monthly credit payments, Foto Master retains the right to maintain the title in the Product until the Customer has completed to pay any due amounts owed to Foto Master.
- Termination and Effect of Termination.
- The Software License is provided to the Customer for a limited term use. such a License will automatically terminate at the end of the authorized term.
- Termination for Breach. This Agreement shall remain in effect until terminated in accordance with its terms and conditions. Foto Master, in its sole discretion, may terminate this Agreement and/or any licenses granted hereunder, in any case the Customer (a) commits breach of any provision of this Agreement and fails to cure such breach upon 48 hours prior written notice; and/or (b) infringe any of Foto Master’s rights with respect to the Software, Product, or any other Foto Master’s intellectual property rights; and/or (c) damage intentionally Foto Master’s business, commercial interests or other assets; and/or (d) 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 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.
- Upon termination or expiration of the Software License, Customer will immediately cease using the Software, and shall return or destroy Software in Customer’s possession, including all copies and related documentation, and certify in writing to Foto Master within 3 (three) business days of the termination date that Customer no longer possesses any copies of the Software in any form on any media.
- Third Party Beneficiary.
- For any Products covered under this Agreement and provided by Customer to other third party, Foto Master or the applicable licensor is a third party beneficiary of the agreement between Customer and the other third party. Foto Master, distributors, and other licensors may be third party beneficiaries of this Agreement with the right to enforce the obligations set forth herein.
- Governing Law.
- This Agreement and any claims or disputes related thereof shall be exclusively governed by and construed under the laws of Israel, and will be brought before the contemplated courts located in Hamerkaz district, Israel. Notwithstanding the foregoing, nothing in this section shall restrict or prevent Foto Master’ right to bring any legal action or to seek civil relief (including without limitation, a motion for injunctive relief) against Customer or other third parties in the jurisdiction where they are located or operating business. Notwithstanding anything to the contrary in this Section, if the Customer is located in the United States of America, the legal jurisdiction governing exclusively all aspects of the payments and scope of transaction contemplated by this Agreement will be the State of Delaware, without respect to its conflict of laws principles, and any and all claims and disputes related to such payment transaction shall be brought in, and the parties hereby consent to them being decided exclusively by, a court of competent jurisdiction located in the State of Delaware.
- No Class Actions.
- The Customer may only resolve disputes with Foto Master on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated or representative action. Class actions, class arbitrations, collective actions, private attorney general actions and consolidation with other arbitrations are expressly not allowed, to the extent permitted by law.
- 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.
- Foto Master may update these terms and conditions or any part thereof at any time without prior notice to the Customer.
- If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, the remaining provisions of the Agreement shall continue in full force and effect.
- Foto Master may assign the Agreement or any part of it to any third party, in its sole discretion. The Customer shall not be entitled to assign the Agreement or any part of its obligations and rights hereunder without the prior written approval of Foto Master.
- If a licence, consent or other regulatory permission is required to perform Customer’s obligations under this Agreement, the Customer shall fulfill such requirement at its own expense.
- Marketing Communications. Foto Master may communicate the Customer with marketing materials via email, phone, mail, Skype, social media account or any other communication means provided to Foto Master by Customer. Customers have the right to ask Foto Master to stop receiving marketing materials at any time, by sending a request to: email@example.com or by using the unsubscribe option contained in those communications. In this case, Foto Master will still be entitled to approach the Customer in any matter concerning Foto Master’s legitimate interests or as required or permitted by applicable law.
- Any purchase of upgrades (including without limitation, software upgrades) shall be subject to this Agreement, unless otherwise expressly indicated by Foto Master in writing.
Limited Warranty Policy
This limited warranty is provided by (i) FOTOMASTER, LLC, registered at Wilmington, DE 19805, United States, for customers located outside Europe and Israel; and (ii) Foto Master Ltd., having its address at 2 Meir Weisgal Road, Israel, for customers located in Europe or Israel (hereinafter: “Foto Master”).
What is covered under the limited warranty?
Foto Master warrants its booth (stand), mirror, flash rod, product case, and any other non – electronic hardware manufactured by Foto Master and included in the product (hereinafter:”Hardware”) against defects in manufacturing (“Defects”) during the Warranty Period (as described below), under normal and customary use of the product.
This Limited Warranty Policy shall be in effect for (i) a period of twelve months commencing on the date of delivery of the product to the customer; and (ii) the period of time between the purchase date and the delivery date (hereinafter and hereinabove: “Warrant Period”) .
The first shipment of new product(s) to the customer upon purchasing is fully insured by Foto Master.
What is not covered under the warranty?
This limited warranty does not cover:
- Software of any kind, whether embedded in the product, or licensed separately.
- Products not manufactured by Foto Master, such as, electric components, and accessories, even if included or sold with a product, such as mini PC’s, flash, printers, cameras, IR touch overlay, etc. The customer should check the specific warranties or guarantee statement(s) which are provided or intended to apply to such non Foto Master products, components, or accessories.
- Problems or issues that result, directly or indirectly, from:
- Servicing not authorized by Foto Master.
- Product being used other than in a normal and customary manner.
- Incorrect voltage or a power surge which are exceed target country’s voltage requirements.
- Usage that is not in accordance with product instructions or Foto Master’s guidelines.
- Products for which Foto Master has not received payment, or products that Foto Master believes that are stolen, imitated, or not original.
- Products that were transferred, sold, or assigned not according to Foto Master’s authorization or policy.
- Normal wear and tear.
- Components that are consumables (e.g. cables).
What Foto Master will do in the event of a warranty claim?
Upon contacting Foto Master, the customer may be required to engage in an online support diagnosis session to help Foto Mater determining the cause of the problem claimed. If Foto Master determines that the Defects in the product can be replaced by the customer, Foto Master may ship spare parts to the customer and provide him with instructions. If Foto Master determines that the Defects are not able to be resolved by the customer on his own or as guided by Foto Master’s support team, Foto Master, at its sole discretion, may request the customer to ship the Defective Hardware to Foto Master’s premises for further examination. Upon receiving the Defective Hardware, Foto Master, in its sole discretion, will repair or replace the Defect, using new or refurbished replacement parts. In the event that Foto Master reveals no Defects in the Hardware, it shall be delivered back to the customer without any repair or replacement of parts.
All expenses and charges associated with the shipment or delivery of the Hardware to and from Foto Master shall be at the customer’s sole responsibility and costs, on the basis of “back to base” warranty. The customer must insure the shipment or accept the risk if the Hardware is lost or damaged in shipment, which could void warranty coverage as customer-induced damage.
Replacement parts are covered for the remaining period of the limited warranty for the product being purchased. Foto Master owns all parts removed or replaced from the repaired Hardware.
The customer may be required to provide Foto Master with documentation or information requested in respect of the purchase’s details. In the event that such information is not presented to Foto Master or if it is incomplete or illegible, Foto Master may, in its sole discretion, refuse to provide the warranty set forth in this policy.
It is hereby clarified that to the extent permitted by applicable law, no refunds are available.
This limited warranty is granted to a customer who purchased products directly from Foto Master or its authorized representatives and distributors. This limited warranty shall not apply to products which are sold, assigned, or transferred to a third party by the customer, unless such sale, transfer or assignment is in accordance with Foto Master’s designated procedure and consent. For further details with respect to sale, assignment or transfer of products to third party, please contact Foto Master’s support service.
UNDER NO CIRCUMSTANCES WILL FOTO MASTER, ITS SERVICE PROVIDER OR EITHER’S AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, THIRD PARTY’S OR INCIDENTAL DAMAGES OR LOSSES, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR INCONVENIENCE, DELAY, LOSS OF PROFITS, MONEY, REVENUE OR TIME, WASTED EXPENDITURE, OR CLAIMS FOR INTERRUPTION IN USE OF THE PRODUCT OR THE SOFTWARE OR AVAILABILITY OR BACKING UP OF DATA.
FOTO MASTER’S SOLE RESPONSIBILITY FOR ANY DEFECTS IN HARDWARE IS LIMITED TO REPAIR OR REPLACEMENT SOLELY, AS SET FORTH IN THIS WARRANTY POLICY AND DURING THE WARRANTY PERIOD. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL PAYMENTS AND PRICES WITH RESPECT TO THE PRODUCTS, HARDWARE, PRODUCT AND SOFTWARE ARE NON REFUNDABLE IN ANY WAY AND FOR WHATSOEVER REASON TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND ARE PROVIDED TO CUSTOMER “AS-IS.”
TO THE EXTENT SUCH WARRANTY STATEMENTS CANNOT BE DISCLAIMED UNDER THE APPLICABLE LAW, FOTO MASTER’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR CLAIMS RELATED TO OR ARISING OUT OF THIS WARRANTY FOR ANY CAUSE AND FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, STATUTORY OR OTHERWISE, INCLUDING NEGLIGENCE AND STRICT LIABILITY, WILL NOT EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID FOR THE PRODUCT. THIS LIMITATION OF LIABILITY WILL BE EFFECTIVE EVEN IF CUSTOMER HAS ADVISED FOTO MASTER OR ITS AFFILIATES OF THE POSSIBILITY OF ANY SUCH DAMAGES.
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS WARRANTY STATEMENT, FOTO MASTER DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FOR THE PRODUCT, HARDWARE AND SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR EXPECTATION, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT.
For customers located outside Europe and Israel, this Limited Warranty Policy shall be governed by and construed under the laws of the state of Delaware, USA. For customers located in Europe or Israel, this Limited Warranty Policy shall be governed by and construed under the laws of Israel.
For any questions, please contact our support staff at firstname.lastname@example.org.
Software End User License Agreement
IMPORTANT – PLEASE READ THIS AGREEMENT BEFORE USING OR DOWNLOADING THE SOFTWARE.
This End User License Agreement (“Agreement”) is a legal agreement between you and Foto Master Ltd and its affiliates. (“Foto Master”).
By using or downloading the Software, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of an entity, you represent that you have authority to bind lawfully that entity. If you do not have such authority or you do not agree to any terms of this Agreement, you are not allowed to use or download the Software.
Please indicate your acceptance of the Agreement by selecting the ‘Accept’ button at the end of this Agreement.
If you do not agree to these terms, select ‘Decline’ button at the end of this Agreement.
If you do not have a structured option to indicate your choice, you agree that by downloading or using the Software you in fact accept the terms set forth in this Agreement.
The term “Software” shall refer to any software whether provided as downloadable or as an online service, tool, utility, documentation or similar delivered by Foto Master including the license kit, and any revision, update or upgrade thereof which are made available by Foto Master to you under the terms and conditions set forth in this Agreement.
The trademarks, logos and service marks displayed on or in the Software (the ‘Marks’) are the sole property of Foto Master or its licensors. You are not permitted to use the Marks without the prior written consent of Foto Master or the relevant licensor.
Foto Master and its affiliates retain ownership of all intellectual property rights in and to the Software, including copies, improvements, enhancements, derivative works and any content or works created via or by the Software, to the extent permitted by applicable law. Your rights to use the Software are limited to those expressly granted to you by this Agreement. All rights of any kind and nature in the Software or any part thereof which are not expressly granted to you in this Agreement are entirely and exclusively reserved to and by Foto Master and its affiliates.
Subject to completion of the full payment for acquiring the Software, and in compliance with this Agreement, Foto Master grants you a limited, non-exclusive and non-transferable non – sublicensable license to use the Software solely for your internal operations and in accordance with the License Agreements (the “License”). This License is granted to you subject to completion of the full payment for the Software, directly to Foto Master or any of its authorized distributors, agents or personnel. You may not rent, sell, lease, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software or any portion thereof, including without limitation, the source code and activation code, as detailed under the “Restrictions on Use” Clause in this Agreement. The Software may contain open source software, available in accordance with the relevant licenses and documentation. The License begins on the date the Software is made available for you through activation, until the expiration of the License’s period, unless the License is terminated by Foto Master in accordance with the License Agreements.
Restrictions on Use
You may not copy or use the Software except as set forth in the License granted to you in this Agreement. You shall not, and shall not authorize any third party on your behalf to:
- Use any activation code, license number, or other verification information supplied by Foto Master in connection with the License on, or for, more than the number of authorized devices specified by Foto Master for the License, or devices not authorized by Foto Master;
- Disclose or release any activation code or verification data to any party other than your authorized representatives or Foto Master’s personnel;
- Reverse engineer, disassemble, decompile, translate, rebuild, transform or extract any part of the Software including any source code thereof;
- Disrupt in any way the operation of the Software or any portion thereof;
- Cause the Software or any part of it to be destroyed, altered, erased, or damaged;
- Access, take control of, destroy, alter, erase, or otherwise damage the operation of any portion of the Software, including by using a computer virus, worm, trap door, back door, time bomb, malicious program, code or other mechanism, or by using hacking, phishing, spoofing or seeking to defeat any data security protections or controls in the Software of any kind;
- Use the Software for any illegal purposes or not in accordance with the applicable laws or regulations;
- Use the Software or any portion thereof to provide, develop or build a product, software or service competing with the Software or any other product of service of Foto Master;
- Use or attempt to use the Software (i) to infringe the copyrights or other intellectual property rights of any third party; (ii) to collect or process personal data not in accordance with the applicable privacy laws and regulations; (iii) to perform any harmful, threatening, abusive or defamatory content or material of any kind; (iv) to assist any fraud, deception, theft or other illegal activity of any kind;
- Violate any of the provisions set out in the Software and Hardware Agreement (https://fotomasterltd.net/publications/product-policies/).
The Software may enable you or your customers to publish or share publicly content uploaded to Foto Master servers (“User Content” and “User Content Service” in accordance). The owner of such a content retains any and all intellectual property rights under applicable law subject to the rights, licenses, and other terms of this Agreement.
The owner of the User Content (i.e. you or your customers) grants to Foto Master a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, royalty-free license to use, copy, distribute, share, sublicense, modify, publicly perform, transmit, publish and make derivative works of all or any portion of the User Content solely for the purpose of this Agreement, and/or for marketing and promotional purposes of Foto Master.
The owner of the User Content represents that: (i) he is the sole author and owner of the User Content, or has a lawful right to publish and share the User Content and grants the said license to Foto Master (ii) the User Content does not infringe any intellectual property or other rights of any third party.
Uploading the User Content to Foto Master servers may require you to provide your customers with a specific link enabling the User Content Service. This link and any use of it is under your sole control and responsibility, and Foto Master will not be liable for any interruption, unavailability or non accessibility of the said link, including to your customers. In addition, Foto Master makes no representation or guarantee that (i) the User Content Service will work properly or uninterrupted; (ii) the User content will be backed up or restored on Foto Master systems or servers. Therefore, Foto Master strongly recommends you to backup on your own system or servers any User Content.
Updates and Changes to the Software
Foto Master may, from time to time and without your permission or consent, update and change Software configurations or features.Updates may include both additions to, and removal of, any particular features or functionality offered by the Software or may replace it entirely, and Foto Master will determine the content, features and functionality of the update or Software change in its sole discretion. You may need to download and permit installation or activation of all available updates to obtain maximum benefit from the Software. Foto Master in its sole discretion will determine when and if updates are appropriate and necessary.
Third Party Platforms, Information and Privacy
Certain services available through the Software may enable you to share content or to link content to third party’s platforms. You acknowledge that Foto Master has no control or responsibility over the legality, privacy and data security practices of such third party’s platforms.
You undertake to provide only accurate information to Foto Master, including without limitation to the identity of the representative authorized to use the License.
The Software may be used within an app downloaded from Google Play, App Store or other third party platform (“the Platforms”). To the extent permitted by the default licenses set out in the Platforms, this Agreement shall govern your use of the Software via the app.
Use of Marketing Materials
Foto Master grants you a limited license to use photos or videos containing Software’s animations or other Foto Master’s content or assets (in whole or in part) as part of marketing materials created or produced by you (“Marketing Materials”). However, Foto Master shall have the right to request you at any time and in its sole discretion to stop using its content within your Marketing Materials, and to not sell, lease or distribute Marketing Materials to third parties.
You grant Foto Master and its affiliates an unlimited, worldwide, royalty-free license to use and distribute the Marketing Materials for its own marketing purposes and by using any kind of media.
Assignability and Transferability
The Software shall be used solely by you and your authorized personnel, and on one device only.
You shall not transfer or assign the License and/or the Software to any other third party unless you have received Foto Master’s prior written consent to do so. Any transfer or assignment of the License or the Software not in compliance with the provisions of the Agreement shall be void and of no effect whatsoever.
Warranty Disclaimers and Limitation of Liabilities
The Software, and any and all accompanying software, components, files, data, parts, portions and materials, are distributed and provided to you “AS IS” and with no warranties of any kind, whether expressed, implied or statutory, including without limitation, any conditions, fitness for a specific purpose, design, capacity, performance, title, and non-infringement. Although Foto master is doing efforts to ensure that the Software works properly, Foto Master does not warrant nor guarantee that the Software will operate uninterrupted or error-free or that all errors will be corrected at time and in a proper way, or that the Software or any equipment, system, device or network on which the Software is used will be free of vulnerability to intrusion or attack.
In no event will Foto Master, its affiliates, officers, directors, employees, agents, suppliers and licensors be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software or otherwise, even if Foto Master has been advised of the possibility of such damages: (a) indirect, incidental, exemplary, punitive, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or (c) wasted expenditure, loss of revenue, profits, goodwill or anticipated sales, savings, or time; or (d) loss of use of any device, loss of data or information of any kind and nature.
Any payments or license fees paid by you for this License are non – refundable, to the extent permitted by applicable laws.
All liability of Foto Master, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to you, whether based on warranty, contract, tort (including negligence), or otherwise, shall not exceed the license fees paid by you to Foto Master or its authorized personnel or distributors, for this License. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
The License is non replaceable. Notwithstanding the foregoing, Foto Master, in its sole discretion, may provide you with an alternate license in one of the following events: (i) your hardware on which the Software was installed on was totally lost or damages, and you have provided Foto Master with either a statement detailing the said loss or damage, in a form and format determined exclusively by Foto Master, and proof, as may be required by Foto Master; or (ii) your hardware on which the Software was installed on was stolen, and you have provided Foto Master with a statement detailing the sai steal of the hardware, in form and format determined exclusively by Foto Master. You shall inform Foto Master immediately in a case that the stolen hardware is being found.
Falsehood, cheating or inaccuracy of any statement given by you will result in adequate compensation to be levied by Foto Master for the alternative Software provided to you, without derogating from any other remedy available to Foto Master under applicable law.
You agree to use the Software lawfully and in compliance with applicable laws. In this regard, you are obligated to avoid uploading or connecting illegal or infringing content to Foto Master’s Software, servers or other assets. In the event that you are aware of such illegal or infringing content that may be located on or connected with Foto Master’s Software, servers or assets, you have to notify us on this matter without any further delay.
This Agreement is the complete statement of the agreed terms between the parties on the subject matter, and merges and supersedes all other or prior understandings, purchase orders, agreements and arrangements.
Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in courts located in Tel- Aviv, Israel, and you consent to such jurisdiction and venue. There are no third party beneficiaries of any promises, obligations or representations made by Foto Master ltd herein. Any waiver by Foto Master of any violation of this Agreement by you shall not constitute or contribute to a waiver of any other or future violation by you of the same provision, or any other provision of this Agreement. Nothing in this section shall restrict Foto Master’s exclusive right to bring any action in connection with this Agreement in the jurisdiction where you or your business are located.
This Agreement will immediately be terminated upon your breach of any of the obligations set out in this Agreement. Foto Master reserves the right to any remedies available under applicable law with respect to your creaching of this Agreement.
Foto Master may amend this Agreement at any time by notice provided to you. Your continued use of the Software after the notice date will constitute your acceptance of the amendment of this Agreement. If you decline to accept the amended Agreement, Foto Master may terminate your use of the Software. In any case, no refund shall apply.
You may not use or otherwise export or re-export the Software except as authorized by applicable laws and the laws of the jurisdictions in which the Software was obtained.
This Agreement constitutes the entire agreement between you and Foto Master governing your use of the Software and supersedes any prior agreements between you and Foto Master relating to the use of the Software. You may also be subject to additional terms and conditions that may apply when you use or purchase third-party content or other Foto Master services.
For any question or issue concerning this Agreement, please contact: email@example.com