Image Content Technology LLC
LucisArt End User License Agreement
Updated November 24, 2011
Please read this document carefully before downloading or installing the Image Content Technology LLC software products, all versions of LucisArt™, LucisArt™ Demo, associated media, printed materials, online or electronic documentation (collectively "Software"). This document is a contract (this "Agreement"). By downloading, installing or copying the Software, you are accepting all of the terms and conditions of this Agreement. This Agreement licenses certain Image Content Technology LLC ("ICT") Software to you. This Agreement contains warranty and liability disclaimers and limits any damages you can recover from ICT.
If you do not agree to the terms and conditions of this Agreement and would like to obtain a refund of the amounts paid for the Software, you must immediately contact the company who sold you the Software license, and comply with its standard return policies and procedures for such Software. Please note that most companies require proof of purchase and the return of the Software within thirty (30) days from the date of purchase, however, return policies and procedures may vary between companies and ICT shall not, in any event, be responsible for any return policies and procedures, except for ICT’s own return policies and procedures for Software obtained directly from ICT.
ICT hereby grants you a nonexclusive license to use the Software, but only on the following terms:
The following capitalized terms shall have the meanings specified in this Section 1. Other terms are defined in the text of this Agreement; and, throughout this Agreement, those terms shall have the meanings respectively ascribed to them.
1.1 "Authorized Computers" means the stand-alone computers or computers in your Internal Network each designated to run the Software as a single, stand-alone computer. You may not install the Software on a computer for access by another person on another computer, such as a network server. If you need multiple users please contact ICT in order to purchase the networked version of the Software.
1.2 "Authorized Users" means you, or your employee or an individual independent contractor authorized by you to use the Software pursuant to the terms of this Agreement. An Authorized User means an individual person, and is not a corporation, company, partnership or association or other entity or organization.
1.3 “Dongle” means the hardware key which is required to be installed on a computer for certain types of Software to operate.
1.4 “Internal Network” means a private network accessible only by employees and contractors of a specific corporation or business entity. Internal Network does not include any portions of the Internet or other parts of the network accessible by the public, such as membership groups, associations and similar organizations.
1.5 “Permitted Number” means one (1).
1.6 "Serial Number" means the character scheme provided by ICT and identified as the Serial Number for the Software. The Serial Number is contained in your Software package. Software purchased directly from ICT will automatically have its Serial Number registered with ICT; otherwise you will need to register your Serial Number for your copy of the Software with ICT.
1.7 “Volume License” means a license to use the Software by multiple concurrent Authorized users by installing the Software on a computer for access by an Internal Network, such as a server.
2. Software License.
2.1 Subject to the terms set forth in this Agreement, ICT grants to you a non-exclusive, non-transferable license to use the Software in executable form only on the Permitted Number of Authorized Computers and to copy and use the Software's accompanying documentation in conjunction with your use of the Software.
2.2 This Agreement DOES NOT include a Volume License of the Software. A separate Volume License (with additional fees) is required. Please contact ICT for more information.
2.3 Demonstration versions of the Software may only be used for 30 days from the time of installation. After that time the demonstration version of the Software must be deleted and uninstalled from all computers. It may not be reinstalled unless given specific permission by ICT in writing.
2.4 The primary user of the Authorized Computer on which the Software is installed may install a second copy of the Software for his or her exclusive use either on a portable computer or a computer located at his or her home provided that the Software on the portable or home computer is not used at the same time as the Software on the authorized Computer..
2.5 Software that is protected by a Dongle may be installed on up to four Authorized Computers provided that the Software may only be operated on one Authorized Computer by one Authorized User at a time (the Authorized Computer with the dongle installed).
2.6 You may reproduce and use ICT's Trademarks in all copies of the Software and its documentation made in accordance with this Agreement.
2.7 All Software, which includes any subsequent updates, upgrades, bug fixes, patches and any part thereof, is provided to you under a nonexclusive and nontransferable license (except for Software transfers expressly authorized by ICT in writing). All right, title to and ownership of all applicable intellectual property rights in the Software, including but not limited to patents, copyrights and trade secrets remain with ICT and its licensors. The above rights extend to any accompanying printed materials and online or electronic documentation and any authorized copies of the above materials. Software is unpublished software, trade secret and confidential or proprietary information of ICT or its licensors and is developed at private expense. The Software is provided with "Restricted Rights" and any use, duplication or disclosure by the US Government is subject to the restrictions and limitations set forth in FAR 52.227-19 and DFAR 252.227-7013 et seq. or its successor.
2.8 You shall ensure that your Authorized Users comply with the terms of this Agreement applicable to their use of the Software.
2.9 You cannot disclose to any third party nor allow any third party to have access to or use of your assigned Serial Number or Software dongle.
2.10 You may reproduce the Software only as reasonably necessary for your own bona fide non-production testing, backup or archival purposes.
2.11 You may not remove, obscure or alter any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any Software or accompanying materials.
3. Copyright, Title & Ownership
The Software is owned by ICT. The Software and its structure, organization and code are the valuable trade secrets of ICT. All intellectual property rights (including without limitation copyrights, trade secrets and trademarks) evidenced by, embodied in, or attached, connected or related to the Software (including without limitation the Software code) belong to ICT. The Software is also protected by United States Copyright Law and International Treaty provisions. You must treat the Software just as you would any other copyrighted material, such as a book. You may not copy the Software except as provided in Section 2. You may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon, the Software, or any part thereof without written permission from ICT.
4. Prohibited Uses
Except as specifically permitted in Section 2 above, you agree not to (i) use, modify, merge or sub- license the Software or any of ICT’s Products; (ii) sell, license (or sub- license), lease, assign, transfer, pledge, or share your rights under this Agreement to anyone else; (iii) modify, adapt, transfer, disassemble, de-compile, reverse engineer, revise or enhance the Software or otherwise reduce the Software to human-perceivable form or attempt to discover the Software’s source code; (iv) place the Software onto a server so that it is accessible via a public network; (v) use any back-up or archival copies of the Software (or allow someone else to use such copies) for any purpose other than to replace an original copy if it is destroyed or becomes defective; (vi) attempt to increase the functionality of the Software in any way; or (vii) export or re-export the Software, directly or indirectly, into any country prohibited by the United States Export Administration Act. If you are a member of the European Union, this Agreement does not affect your rights under any legislation implementing the EC Council Directive on the Legal Protection of Computer Programs. If you seek any information within the meaning of the Directive you should contact ICT.
5. Right to Restrict Use.
ICT reserves the right, with or without notice, to restrict your use or access to the Software, in whole or in part, if ICT reasonably determines that there is an unauthorized use of your assigned Serial Number, dongle or use or access to the Software by persons or entities who are not Authorized Users or Authorized Concurrent Users. Such restriction by ICT shall not be a breach of this Agreement by ICT, and shall be in addition to any other rights and remedies ICT has under law and equity.
6. Limited Warranty
ICT warrants that for a period of 1 month from the date on which you download or install the Software, whichever is earlier (the "Warranty Period"), the Software, if operated as directed, will conform substantially to the then current published functional specifications, provided that it is used on the computer hardware and with the operating system for which it was designed. NO DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS WARRANTY. READ THE WARRANTY LIMITATIONS AND DISCLAIMERS IN SECTION 7 BELOW.
7. Warranty Limitations and Disclaimers
READ THE FOLLOWING DISCLAIMERS CAREFULLY.
7.1 ICT DOES NOT WARRANT THAT THE SOFTWARE OR ANY OF ITS PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
7.2 TO THE EXTENT ALLOWED BY LAW, ICT EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES NOT STATED IN THIS AGREEMENT AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION, USE, EFFICIENCY AND SUITABILITY OF THE SOFTWARE ON YOUR SYSTEM, AND ICT SHALL HAVE NO LIABILITY THERE FOR AT ALL. ICT does not warrant that the functionality maintained in the Software will meet all of your requirements or that the Software will operate in combinations you might select.
7.3 The limited warranty shall not apply if the Software is used on or in conjunction with any hardware or programs other than the unmodified version of hardware and program with which the Software was designed to be used as described in the Software documentation.
7.4 ICT DOES NOT MAKE ANY WARRANTIES OF ANY KIND THAT THE SYSTEM OR COMPONENTS DO NOT OR WILL NOT INFRINGE ANY COPYRIGHT, PATENT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY IN ANY COUNTRY.
7.5 To the extent permissible, any implied warranties are limited to 90 days. This warranty gives you specific legal rights. You may have other rights that vary from state to state or jurisdiction to jurisdiction.
7.6 Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
7.7 All warranties are null and void if the Software is (i) altered, including installation of interfacing computer programs that are not as described in this Agreement; (ii) subjected to out-of-specification uses, viruses or accidents; (iii) misused; (iv) damaged by your or any other person’s negligence, or your or any other person’s failure to follow instructions or specifications as to proper use, care, maintenance of Software or the media on which it is installed; or (v) damaged by external factors such as fluctuation of electrical power, temperatures above 80 degrees Fahrenheit, fire, flood or failure or your failure to comply with environmental specifications.
7.8 ICT shall have no responsibility for the effect that the installation of the Software may have on any other warranties relating to products to which the Software might be attached.
8. Limitation of Remedies
8.1 For Windows Software ICT will make reasonable efforts to correct errors reflecting significant deviations from the functional specifications that you report to ICT during the warranty period, but because not all errors in Software can or need be corrected, ICT does not warrant that all Software defects will be corrected.
8.2 You agree to hold ICT harmless from and indemnify ICT against any and all liabilities, claims, costs, losses and expenses (including reasonable attorneys fees), paid or incurred as a result of or arising from your or any other person’s alteration, misuse or modification of the Software or violation of this Agreement.
ICT shall have the right to inspect and audit your records pertaining to the Software to ensure ongoing compliance with this Agreement. ICT or ICT's independent certified public accountant shall conduct such inspection and audit at ICT's expense. Any inspection and audit will be conducted during regular business hours with reasonable notice and will not unreasonably interfere with your normal business activities. Inspections and audits will not occur more frequently than once a year, however, if past inspections and audits reveal major discrepancies, ICT shall have the right at any time to an inspection and audit upon written request. If any inspection and audit reveals any underreported, unpaid or unauthorized use of the Software, then you shall promptly pay to ICT the then current fee representing the underreported, unpaid or unauthorized use of the Software. In addition, you will be responsible for the costs and expenses of the inspection and audit if such inspection and audit reveals that the then current fee representing the underreported, unpaid or unauthorized use of the Software is equal to or greater than 5% of the amounts actually paid by you for such Software.
10. Limitation of Liability and Exclusion of Damages
10.1 IF, NOTWITHSTANDING THE TERMS OF THIS AGREEMENT, ICT IS FOUND LIABLE FOR DAMAGES BASED ON ANY DEFECT OR NONCONFORMITY OF ITS SOFTWARE OR OTHER PRODUCTS, ITS TOTAL LIABILITY FOR EACH DEFECTIVE PRODUCT SHALL NOT EXCEED THE PRICE PAID TO ICT FOR SUCH DEFECTIVE PRODUCT. The entire liability of ICT and your exclusive remedy for any defective Software or other Product provided under this Agreement is limited to its return to ICT within 1 month after the earlier of its download or installation for replacement of such software or other product such Software or other Product. THE ENTIRE LIABILITY OF ICT AND YOUR EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF THE SOFTWARE OR OTHER PRODUCT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT OR IN TORT, NEGLIGENCE OR PRODUCT LIABILITY, WILL NOT EXCEED THE CHARGES PAID TO ICT. SUCH EXCLUDED DAMAGES SHALL INCLUDE COSTS AND ATTORNEYS FEES.
10.2 IN NO EVENT WILL ICT OR ITS SUPPLIERS OF GOODS OR SERVICES BE LIABLE TO YOU OR ANY OTHER PERSON FOR (a) ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUES, PROFITS OR SAVINGS, EVEN IF ICT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, (b) CLAIMS, DEMANDS OR ACTIONS AGAINST YOU BY ANY PERSON, (c) LOSS OR DAMAGE TO YOUR DATA FROM ANY CAUSE OR (d) COSTS AND ATTORNEYS FEES.
10.3 You acknowledge that the limitations contained in this Section permit ICT to provide Software and other Products at lower rates than ICT otherwise could, and such limitations are reasonable. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO LIMIT ICT’S EXPOSURE FOR DAMAGES. ICT SHALL NOT BE LIABLE TO YOU FOR ANY REASON OTHER THAN AS EXPRESSLY SET FORTH HEREIN. REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, ICT SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, EVEN IF ICT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ICT’S TOTAL LIABILITY FOR ALL CAUSES OF ACTION ADDED TOGETHER MAY NOT EXCEED THE AMOUNT DESCRIBED IN THIS SECTION 10. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitations may not apply to you.
11. No Other Warranties
Except as specifically provided herein, ICT makes no warranty or representation, either express or implied, with respect to its Software or other Products, including its quality, performance, merchantability or fitness for a particular purpose.
ICT may immediately terminate this Agreement if you are in default of any provision of this Agreement. In the event of such termination, you must either return or destroy the Software and all copies thereof, in whole or in part, and provide ICT with written certification of such return or destruction.
You may not export or re-export the Software or any direct product thereof without the appropriate United States or foreign government export licenses and approvals.
14. European Union Software Directive
If European Union Directive 91/250/EEC applies to your use of the Software, and you desire to obtain information that is indispensable to achieve interoperability of independently created software with the Software as permitted under Article 6 of the Directive (the "Information"), you must notify ICT, in writing, specifying the software for which interoperability is sought (the "Integration Software"). If ICT reasonably determines that you are entitled to such Information, ICT shall, at its option, either: (a) provide the Information necessary to achieve interoperability between the Software and the Integration Software; or (b) allow you to reverse engineer the Software, within the limits prescribed by the Directive, solely to the extent necessary to obtain the required Information. If ICT elects to provide the Information to you, you agree to provide ICT with all information and assistance reasonably necessary to enable ICT to provide the Information.
15. Support Services
All customers are required to back up the Software and serial number.
For Windows Software only: For a period of three (6) months following your purchase of the Software, ICT will provide telephone and/or email technical support concerning the installation and use of the Software. ICT shall respond to support requests within two business days for calls received during its normal business day (9:00 a.m. to 4:00 p.m. EST Monday through Friday, excluding legal holidays).
For Macintosh Software: For a period of 1 week ICT will provide the serial number and Software by e-mail in the event there is a problem with the download link on the e-commerce site. Customers are required to have an e-mail address that can accept zip file attachments with executables in the zip file. All other technical support will be provided for a fee.
For all Software: ICT shall undertake commercially reasonable efforts to correct any reproducible error reported in the then-current release of the Software. At your option, and upon payment of the then-applicable annual support service fees, you may extend your right to receive support services, in which case you shall be entitled to receive one (1) copy of all published revisions, updates and enhancements of the Software that are not designated as new products for which ICT charges a separate fee.
16. Other Provisions
16.1 Unless otherwise stated, ICT and you have the right to cure any default within a reasonable time from notice of the default.
16.2 This Agreement will be governed by the law of the State of Connecticut excluding its conflict of laws rules. The rights and obligations provided under chapter 625 of the Connecticut General Statutes are in addition to and not in lieu of any conflicting tort, restitutionary, or other law of the State of Connecticut pertaining to civil liability for misappropriation of a trade secret. All disputes arising in connection with this Agreement shall be resolved in the State or Federal courts of Connecticut, and you hereby submit to the personal jurisdiction of such courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
16.3 This Agreement constitutes the entire agreement between ICT and you with respect to the Products and Services. This Agreement supersedes all earlier proposals and agreements, both written and oral, and all other written and oral communications between ICT and you. The terms and conditions of this Agreement will supersede all other terms and conditions you may have submitted.
16.4 You will not assign or transfer your rights or obligations under this Agreement without prior written consent of ICT. Any assignment or transfer prohibited by this provision will be null and void.
16.5 This Agreement may be modified only in a writing signed by a duly authorized officer of ICT.
16.6 No proceeding or legal action, regardless of its form, whether in contract or tort, including negligence, related to or arising out of this Agreement, may be brought by either party more than one year after the cause of action first accrued.
16.7 If any part of this Agreement is ruled by any arbitrator, court or administrative or regulatory agency to be unenforceable or invalid, this Agreement shall be automatically modified to eliminate that part and the remainder will remain in full force and effect.
16.8 All questions concerning this Agreement should be directed to: Image Content Technology LLC, 1750 Delta Waters Rd., Suite 102 PMB 320, Medford OR 97504 Attention: Legal.
16.9 Lucis® and LucisArt™ are trademarks of Image Content Technology LLC.
All rights reserved under the copyright laws of the United States. Image Content Technology LLC, 1750 Delta Waters Rd, Suite 102, PMB 320, Medford OR 97504.
BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE DEMONSTRATING THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND
AGREE TO BE BOUND BY ALL OF ITS TERMS.