Pictomio™ Software License Agreement (EULA)

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Pictomio™
Software License Agreement (EULA) as of 03/2008

Copyright © 2007-2008
Pictomio GmbH, Germany - All Rights Reserved

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END USER LICENSE AGREEMENT

This license agreement is a valid contract between you (individual or legal entity) and Pictomio GmbH, Germany, for the product Pictomio™ owned by Pictomio GmbH.

IN STATES/COUNTRIES WHERE SOME OF THE FOLLOWING RESTRICTIONS ARE ILLEGAL, YOU ARE NOT ALLOWED TO USE THIS PRODUCT!

Installing, registering, copying, downloading or otherwise using Pictomio indicates your irrevocable acceptance of this licensing agreement and of our Copyright terms.

In case you do not agree to the terms of this license agreement, Pictomio GmbH will not license the software product for you. In this case, you will not be allowed to use or copy the software product. In addition, you will be obliged to contact Pictomio GmbH immediately in order to receive information on how to return the software product and all other purchased items for refund of the purchase price under the terms of Pictomio GmbH.

This license agreement will be displayed any time prior to the installation of the software. It must be accepted by ‘clicking’ on the corresponding button in order to obtain the license for the installation of the software.

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1. GRANTING OF A LICENSE

PRIVATE USE
Pictomio (not Pictomio Add-Ons like e.g. pictoGEO) is provided as freeware, but only for private, non-commercial use. Pictomio is also available free for educational and non-profit organizations.

COMMERCIAL USE
Pictomio is NOT FREE for commercial use. If you intend to use Pictomio for business or commercial purposes or at public places, you have to buy at minimum one Pictomio Add-On License per User.

GENERAL LICENSE FOR INSTALLATION AND USE:
Pictomio GmbH grants the licensee a non-exclusive license for Pictomio. The license comprises the following: 1. The application on a data carrier. 2. Enclosed data. 3. Software documentation. 4. Additional written materials. Source codes are not subject matter of this agreement and are neither part of the scope of software supply nor of any installations.

The licensee has no right to own the source code of Pictomio and will not receive this code. The software product is licensed and not sold!

RESERVATION OF RIGHTS:
This license agreement does not grant the Licensee any rights other than those explicitly granted herein. The ownership, copyrights and any rights pertaining to Pictomio remain with Pictomio GmbH. The licensee may not utilize any part of Pictomio for purposes other than installing one copy per license on his or her computer. Pictomio GmbH reserves, in particular, all rights for the publication and duplication of the software. Pictomio GmbH only may alter the software in any form.

UPDATES:
The software updates are licensed in accordance with this license agreement unless you are asked to agree to a separate license agreement. In this case, the installation and use of the updates will be covered by the latter.

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2. DELIVERY

Unless otherwise agreed, Pictomio GmbH reserves the right to make its Pictomio software application exclusively available for electronic download from a server set up in the Federal Republic of Germany.

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3. LIMITATION OF USE

The software application may be used on one or several computers. The software application may only be copied for use on each of these computers. For commercial use you need to license a copy per computer.

The software application must not be passed on to any third parties except as described in section 6.

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4. COMPLIANCE WITH LAWS

You may not use the Software to store, print or transmit any pictures, text or other material that is unlawful, whether a violation of civil rights or criminal law (such as obscenity), or that fosters hatred of any race, religion, ethnicity, age-group, gender or sexuality.

The form and content of pictures, text or other material that you store, print or transmit is governed by applicable laws (such as, those prohibiting child abuse, child pornography, copyright infringement, or invasion of privacy).

You agree that you will defend, indemnify and hold Pictomio harmless against any claim arising out of or related to your failure to comply with the terms of this Section.

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5. THIRD PARTIES

The right to use this software can only be transferred under the conditions of this agreement. The licensee may neither retain a copy in computer readable nor printed form; he or she must transfer the entire software product including all components, the media and printed material, all updates as well as all registration data to the transferee.

If the software product is an updated version, the transfer must embrace all former versions.

The transferee must explicitly agree to the terms and conditions of this agreement. The leasing, renting or lending of the software is prohibited.

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6. ALTERATIONS

The Licensee may not alter the software him- or herself or through a third party. The Licensee is prohibited from using the software as the basis for his or her own work. He or she may not copy printed materials. Any form of reverse engineering (e.g. decompiling, disassembling) is strictly prohibited unless local jurisdiction explicitly permits reverse engineering.

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7. DURATION OF CONTRACT

This contract does not have a time limit. However, the Licensee looses his or her license, if any infringement of Pictomio´s rights occurs.

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8. DOCUMENTATION

The documentation and manuals are available in electronic form only, even with CD-ROMs. A notice of defect has no legal effect, and the agreement cannot be voided because of the lack or failure of a printed documentation.

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9. CONSUMER RIGHT OF WITHDRAWAL

The EU Distance Selling Directive regulation is NOT applicable!

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10. WARRANTY AND LEGAL LIABILITY

Pictomio GmbH does not guarantee that the software product or any other product meets the customer requirements and purposes. Nor does Pictomio GmbH guarantee that the software product and hardware product is compatible with other software or hardware.

The Licensee knows that current technology cannot guarantee the functioning of software products under any condition.

The data and information provided on Pictomio’s website, in the operating instructions and manuals, and in any other material like product descriptions and catalogues must be considered as non-committal product descriptions and not as guarantees. The granting of a guarantee must be confirmed in writing by Pictomio to become legally binding.

All other warranty and liability of Pictomio GmbH, its representatives and auxiliary persons is excluded unless Pictomio GmbH acted in a grossly negligent way or intentionally, or bodily harm is subject matter of the damage event. Any implied warranty for merchantability or fitness for a particular purpose is excluded.

We do not assume liability for lost revenues, loss of profit, damage to or the loss of data as well as any damage resulting thereof, especially phone costs, communication costs or provider costs except in the event that Pictomio GmbH acted in a grossly negligent way or intentionally, or bodily harm is subject matter of the damage event and as far as this is applicable by law. We also do not assume liability for any installation-, maintenance or service costs which result from the Pictomio software directly or indirectly. In any case, Pictomio GmbH's legal liability only includes compensatory damages and is limited to 5 EUR.

No punitive damages may be assessed. Any explicit warranties from Pictomio GmbH remain untouched. Any warranties that the local jurisdiction adopted by law remains fully intact.

IN STATES/COUNTRIES WHERE THESE RESTRICTIONS ARE ILLEGAL, YOU ARE NOT ALLOWED TO USE THIS PRODUCT! IF YOU DO NOT AGREE THEN JUST DO NOT USE THIS PRODUCT.

Licensee is solely responsible for the proper use of the product and data saving.

The Software may contain hypertext links to third-party web sites or information. Pictomio does not make any warranty, endorsement, sponsorship, or recommendation of the third-party, the third-party web site, or the information contained therein. Pictomio is not responsible for the availability of any such web site or liable for the content thereon.
You need to make your own decisions regarding your interactions or communications with any other web site.

Third-party statements and grants (e.g. distributors) about warranty, liability and compensatory or punitive damages are non-binding to Pictomio GmbH.

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11. THIRD-PARTY LICENSING RIGHTS

The software "Pictomio" will neither be sold within the USA nor made available for download from an US located server owned by Pictomio GmbH.

Images may contain the .gif graphics format (Compuserve Graphic Interchange). "The Graphics Interchange Format(c) is the Copyright property of CompuServe Incorporated. GIF(sm) is a Service Mark property of CompuServe Incorporated."

"The Independent JPEG Group's JPEG software" is copyrighted (C) by Thomas G. Lane.

"The PNG Reference Library libpng" is copyrighted (C) by Glenn Randers-Pehrson. Libpng is OSI Certified Open Source Software.
OSI Certified Open Source is a certification mark of the Open Source Initiative. Pictomio installs Microsofts DIRECTX Software. Users who install Pictomio agree to the DirectX EULA below:

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MICROSOFT SOFTWARE LICENSE TERMS
MICROSOFT DIRECTX END USER RUNTIME

These license terms are an agreement between Microsoft Corporation (or based on where you live, one of its affiliates) and you. Please read them. They apply to the software named above, which includes the media on which you received it, if any. The terms also apply to any Microsoft for this software, unless other terms accompany those items. If so, those terms apply.
BY USING THE SOFTWARE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE. If you comply with these license terms, you have the rights below.

  1. INSTALLATION AND USE RIGHTS.
    You may install and use any number of copies of the software on your devices.
  2. SCOPE OF LICENSE.
    The software is licensed, not sold. This agreement only gives you some rights to use the software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways.
    You may not
    • work around any technical limitations in the software;
    • reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;
    • make more copies of the software than specified in this agreement or allowed by applicable law, despite this limitation;
    • publish the software for others to copy;
    • rent, lease or lend the software;
    • transfer the software or this agreement to any third party; or
    • use the software for commercial software hosting services.
  3. BACKUP COPY.
    You may make one backup copy of the software. You may use it only to reinstall the software.
  4. DOCUMENTATION.
    Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes.
  5. EXPORT RESTRICTIONS.
    The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.
  6. SUPPORT SERVICES.
    Because this software is “as is,” we may not provide support services for it.
  7. ENTIRE AGREEMENT.
    This agreement, and the terms for supplements, updates, Internet-based services and support services that you use, are the entire agreement for the software and support services.
  8. APPLICABLE LAW.
    a. United States. If you acquired the software in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.
    b. Outside the United States. If you acquired the software in any other country, the laws of that country apply.
  9. LEGAL EFFECT.
    This agreement describes certain legal rights. You may have other rights under the laws of your country. You may also have rights with respect to the party from whom you acquired the software. This agreement does not change your rights under the laws of your country if the laws of your country do not permit it to do so.
  10. DISCLAIMER OF WARRANTY.
    THE SOFTWARE IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. MICROSOFT GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, MICROSOFT EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  11. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES.
    YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
    This limitation applies to
    • anything related to the software, services, content (including code) on third party Internet sites, or third party programs; and
    • claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
      It also applies even if Microsoft knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.

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12. CONSENT TO FURTHER USE

The Software may soon contain features that enable Pictomio, via the internet, to notify you of available software upgrades, promotions, products and services in which you may be interested; to update instructional and marketing content in the Software; and to collect non-personally identifiable usage data. You agree that Pictomio may utilize these features to provide such notices and updates, and to collect such data, unless you have elected to deactivate the features in the Software. For information on how to deactivate one or more of these features, refer to the help file.

The Licensee agrees expressly that his/her company and personal data will be saved and processed in the database of Pictomio GmbH in conjunction with the business he/she has done with Pictomio GmbH and in accordance with the law. Licensee further agrees to the procedure by means of which the data are processed.

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13. COPYRIGHTS / TRADEMARKS

All property rights, title, and copyrights in and to the software product, including all (including, but not limited to, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the software product) and documentation and any copies of the software product are owned by Pictomio GmbH.
Pictomio is a registered Trademark.
You may not copy the licensed software product and the documentation neither completely nor in part with the exception of one machine-readable copy of the licensed software product solely for backup or archival purposes, or unless you want to install the software product for protection purposes. Licensee is obliged to attach the copyright notice of Pictomio GmbH to this backup copy.
All title and intellectual property rights in and to the content which may be accessed through use of the software product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This agreement does not grant you any rights to use such content.
All rights which have not been expressly transferred or assigned to the Licensee are owned by Pictomio GmbH. This agreement does not grant you any rights in connection with any trademarks or service marks of Pictomio GmbH.

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14. COMPLIANCE WITH TRADE REGULATIONS

Licensee acknowledges that the software product including all hardware products is subject to German trade law, European trade law and the national laws of the EU Member States. Licensee agrees to comply with all applicable international and national laws that apply to the software product, including the German and European Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by Germany and other governments.

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15. CLOSING STATEMENT

Without prejudice to any other rights Pictomio GmbH may terminate licensee’s rights under this agreement if Licensee does not observe a term or condition of this contract. In this case, Licensee must delete any copy of the software product and return any hardware product to Pictomio.

Pictomio GmbH's General Business Terms and Conditions apply. You can view and print the General Business Terms and Conditions by visiting the following web site http://www.pictomio.com/Company/Agb.aspx.

Any amendments and modifications to this agreement need to be in writing including this clause.

If any part of this contract is illegal, the remainder of the contract remains nonetheless in full force. The contract becomes automatically amended in a way that comes closest to the business intentions behind the invalid part that made this contract illegal.
The same rule applies if a contractual loophole occurs.

The law of the Federal Republic of Germany only applies to this contract. This license shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Place of jurisdiction is Muenster, Germany.