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 and/or the Software (hereinafter: “Customer”), and Foto Master Ltd. or any of its representatives and subsidiaries (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.
- Definitions as used in this Agreement and any applicable quotation, supplement, attachment and/or addendum (hereinafter: “Addenda”), these terms shall have the following meanings:
- “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 but not limited to any updates, modifications, revisions, copies, videos, photos, animations, graphic elements, design assets, applications, content, documentation and design data that are licensed under this Agreement which will be provided by Foto Master;
- “Hardware” means any system or sub-system and associated documentation;
- “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;
- “Customer’s Content” means any marketing materials (e.g. photos, videos, etc.) created by the Customer and displaying or representing Software’s animations, graphic elements, Products, or other assets of Foto Master as part of the content.
- Orders, Fees, Payment and Warranty Policy.
- 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.
- 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.
- An optional software License renewals fees will be 10% of the software license cost to obtain additional year of upgrades and support. The fees may be changed from time to time and are subject to Foto Master’s sole discretion as represented on its official website or by its authorized personnel.
- Deposits are non refundable deposits.
- Fully paid invoices are non refundable.
- Foto Master’s Warranty Policy can be viewed here.
- Grant of License.
- The Products installed, downloaded, or otherwise acquired by Customer under this Agreement constitute or contain copyrighted materials, trade secrets, know-how information, trademarks, patents, designs, proprietary and confidential information of Foto Master or its licensors, who maintain exclusive title to all Software and Hardware and retain all rights not expressly granted by this Agreement. Foto Master grants to Customer, subject to payment of applicable license fees, a limited, non transferable, non resellable, non assignable and non sublicensable license to use Software and Hardware as described in the Invoice for the Customer’s purposes. The limited licenses granted under the Invoice shall continue until the termination of this license. Foto Master does NOT grant Customer any right or authorization to (a) sublicense, sell, lease or use Software beyond the scope of this Section without first signing a separate agreement or Addenda with Foto Master for such purpose.
- A Customer may install and use the Software by a single user who uses the Software on up to one computer (or other end – equipment, as Customer may choose), which is in use at any one time.
- The Software may contain open source software, available in accordance with the relevant open source license(s) or documentation.
- License from Customer.
- Customer grants Foto Master an unlimited, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, distribute, modify and publicly display any Customer’s Content for its marketing purposes.
- Restrictions on Use.
- The Software is licensed to you for a limited term, not sold.
- You may 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 any documentation therein, or permit any third party to do so. You may not distribute or use the Software in any manner other than authorized to you in accordance with this Agreement or as agreed in writing by Foto Master.
- Customer acknowledges that the Products or Software 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. 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 Products or Software 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 may include confidential information of Foto Master. Under no circumstances shall Customer use Products or Software or allow their use for the purpose of developing, manufacturing, enhancing or marketing any product or software that is in any way competitive or similar with Products or Software, or disclose to any third party the results of, or information pertaining to, any benchmark.
- Customer shall not 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 provided by Foto Master to Customer.
- 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, which shall not be unreasonably withheld, and payment of Foto Master’ then-current applicable relocation and/or transfer fees. 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.
- 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.
- To the extent permitted by applicable law, Customer shall immediately refrain, upon Foto Master first request, from any distributing, selling, or leasing Content to any third party which is (i) competing with Foto Master’s business; or (ii) damaging Foto Master’s rights or assets in any other way.
- Support Services.
- Unless otherwise specified in any applicable Addenda to this Agreement, to the extent Customer purchases support services, Foto Master will provide technical support at firstname.lastname@example.org.
- Uploading User Content.
- Foto Master may provide the Customer with a cloud service (“the Uploading Service”) enables its end users to upload and host on cloud servers of Foto Master photos and videos created via the use of the Product for the purpose of sharing this content through third party’s services or social media platforms (“User Content”). For the avoidance of doubt, Foto Master makes no representation or guarantee for the interfacing of the User Content with third party’s platforms, and has no control or responsibility over the practices of the said third party’s services or platforms, including with respect to their compliance with applicable laws or regulations.
- By using the Uploading Service, you grants Foto Master the worldwide, perpetual, irrevocable, royalty-free, non-exclusive, transferable right to use, distribute and publicly display User Content for its marketing purposes, including via websites, social media and other marketing materials.
- Any User Content should be uploaded to the Uploaded Service clean of any infringing or illegal material including with respect to copyright, trademark, patents, trade secrets or other Intellectual Property rights.
- Foto Master retains its right to remove any User Content from the Uploading Service or to stop providing the Uploading Service at any time, for any reason.
- The Uploading Service is provided “AS-IS” to Customer and end users and Foto Master makes no warranties or representation of any kind that the Uploading Service will meet Customer or end users requirements, expectations, and/or purposes, and/or will be uninterrupted , timely, secure or free from errors, delays, omission, interruption or defects of any nature. Without derogating from the above, Foto Master shall not be liable for any error, delay, interruption in transmission, unavailability or non accessibility of the User Uploaded Content or the Uploading Service for whatsoever reason. Foto Mater makes no guarantee or representation that the User Uploaded Content will be backed up, recoverable or reproducible in any manner. Therefore, Foto Master strongly recommends you to backing up any User Uploaded Content on your own systems.
- Limited Warranty.
- FOTO MASTER MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, THE SERVICE (INCLUDING THE UPLOADING SERVICE) AND THE PRODUCTS NOT MANUFACTURED BY FOTO MASTER WHICH ARE PROVIDED “AS IS” UNLESS OTHERWISE AGREED IN WRITING.
- THE WARRANTIES SET FORTH OR REFERRED TO IN THIS SECTION ARE EXCLUSIVE TO CUSTOMER 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 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.
- LIMITATION OF LIABILITY.
- Foto Master has no control over the availability or accessibility of the Software (including via Foto Master apps) located on or in connection with third party’s platforms (i.e. 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 with respect to the Software, including but not limited to (a) removing the Software from third party’s platform; or (b) limiting or preventing the accessibility of the Costumer to the Software, for whatsoever reason; or (c) taking any other action ceasing the availability of the Software on the third party’s platform. Foto master may make reasonable efforts to restore 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. An event occurring as described above shall not entitle the Customer with a right to any kind of refund or chargeback to the extent permitted by applicable law.
- Some features or configurations of the Software may be interfaced with or depend on third party’s systems, software or platforms (i.e API connections, operating systems, updating software requirements) (“Third Party Systems”). Accordingly, Foto Master does not guarantee or make any representation that such interfacing with or depending on Third Party Systems will remain permanent available or accessible to Customer throughout all the license period. As a result, 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 entitle the Customer with a right to any kind of refund or chargeback to the extent permitted by applicable law.
- 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.
- Hazardous Applications.
- Customer agrees that Foto Master has no control over Customer’s testing or the specific applications and use that Customer will make of Products.
- 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.
- 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.
- Termination for Breach. This Agreement shall remain in effect until terminated in accordance with its terms. Foto Master, in its sole discretion, may terminate this Agreement and/or any licenses granted under this Agreement, and Customer will immediately discontinue use and distribution of Products and/or Software, if Customer (a) commits any material breach of any provision of this Agreement and fails to cure such breach upon 24 hours prior written notice; or (b)infringe any of Foto Master’s rights with respect to the Software, Product, or any other Foto Master’s intellectual property rights; or (c) damage Foto Master’s business or assets; 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 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.
- 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 the 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.
- 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.
- 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.
- 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, affiliate or representative in the jurisdiction where (i) Foto Master deems appropriate for whatsoever reason; or (ii) Customer, its affiliates, subsidiaries, representatives or businesses are 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.
- 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.
- 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.
- Marketing Communications. Foto Master is entitled to 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. Customer has 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 by applicable law.
- Any purchase of upgrades shall be subject to this Agreement, unless otherwise indicated by Foto Master.
Limited Warranty Policy
This limited warranty is provided by FOTOMASTER, LLC, registered at Wilmington, DE 19805, and having its address at 1525 Stratford Ave, Stratford, CT, United States , and its affiliates (“Foto Master”).
In this limited warranty policy, the term “Hardware” refers to booth (stand), mirror, flash rod, product case, and any other non – electronic hardware manufactured by Foto Master and included in the product.
What is covered under the limited warranty?
Foto Master warrants its Hardware against defects in manufacturing (“Defects”) during the warranty period (as described below), under normal and customary use of the product.
The limited warranty for the Hardware applies to (i) a period of twelve months commencing on the date of delivering the product to the customer; and (ii) the period between the purchase date and the delivery date.
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.
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 AND SOFTWARE ARE NON REFUNDABLE IN ANY WAY AND FOR WHATSOEVER REASON.
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 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