RED GIANT, LLC
SOFTWARE STORE TERMS AND CONDITIONS, USAGE RULES AND END USER SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT BETWEEN YOU AND RED GIANT, LLC ("RED GIANT") GOVERNS YOUR USE OF THE RED GIANT® SOFTWARE PRODUCT DELIVERY SERVICE (THE “Software Product Services”) at www.redgiant.com, and all associated sites linked to www.redgiantsoftware.com by Red Giant, its subsidiaries and affiliates, including but not limited to the subdomain (people.redgiantsoftware.com) as well as in the RGTV section (http://www.redgiantsoftware.com/videos/) (collectively, the “Site”), and all Red Giant software (“Software Products”).
THIS AGREEMENT INCLUDES THE FOLLOWING:
A. TERMS AND CONDITIONS OF THE RED GIANT SOFTWARE PRODUCT SERVICE;
B. USAGE RULES OF THE RED GIANT SOFTWARE PRODUCT SERVICE; AND
C. END USER LICENSE AGREEMENT FOR ALL RED GIANT SOFTWARE PRODUCTS.
READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE EITHER REMOVING THE DISK FROM THE PACKAGE OR INSTALLING THE SOFTWARE PRODUCTS. BY INSTALLING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST REFRAIN FROM INSTALLING THE SOFTWARE PRODUCTS AND, IF YOU OBTAINED THE SOFTWARE BY MEANS OF A DISC OR OTHER TANGIBLE MEDIA, PROMPTLY RETURN SUCH DISC, OTHER TANGIBLE MEDIA AND ITS PACKAGE TO RED GIANT WITHOUT USING IT.
A. TERMS AND CONDITIONS OF THE RED GIANT SOFTWARE PRODUCT SERVICE
Red Giant is the provider of the Red Giant Software Product Service that permits you to license software products and digital content (the “Software Products”) for end user use only under the terms and conditions set forth in this Agreement. For Software Products, end users may be individuals acting in their own capacities, commercial enterprises or educational institutions.
REQUIREMENTS FOR USE OF THE SOFTWARE PRODUCT SERVICE
The Software Product Service is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
Use of the Software Product Service requires compatible devices, Internet access, and certain software (fees may apply); may require periodic updates; and may be affected by the performance of these factors. High-speed Internet access is strongly recommended. The latest version of required software is recommended to access the Software Product Service and may be required for certain transactions or features and to download Software Products previously purchased from the Software Product Service. You agree that meeting these requirements, which may change from time to time, is your responsibility. The Software Product Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the Software Product Service.
As a registered user of the Software Product Service, you may establish an account ("Account"). Don’t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account, and for all activities that occur on or through your Account, and you agree to immediately notify Red Giant of any security breach of your Account. Red Giant shall not be responsible for any losses arising out of the unauthorized use of your Account.
In order to purchase and download Software Products from the Software Product Service, you must enter your Red Giant ID and password to authenticate your Account. Once you have authenticated your Account, you will not need to authenticate again for thirty minutes. During this time, you will be able to purchase and download Software Products without re-entering your password. You can turn off the ability to make Software Product purchases by terminating your sign-in session in one of two ways: (a) by explicitly signing out; or (b) by initiating no activity in your account for thirty minutes.
You agree to provide accurate and complete information when you register with, and as you use, the Software Product Service ("Software Registration Data"), and you agree to update your Software Registration Data to keep it accurate and complete. You agree that Red Giant may store and use the Software Registration Data you provide for use in maintaining and billing fees to your Account.
AUTOMATIC DELIVERY AND DOWNLOADING PREVIOUS PURCHASES
After you first acquire downloaded Software Products (collectively, “Auto-Delivery Content”), as an accommodation to you, subsequent to acquiring Auto-Delivery Content (each, “Eligible Content”), you may download certain of such previously-purchased Eligible Content onto any computer you own or control. Red Giant will generally seek to offer to you access to your history of your prior orders for you to reference in order to retrieve whatever serial numbers or licensed Software Products you seek, as well as trial versions of Software Products you have not yet licensed. Some Eligible Content that you previously purchased may not be available for subsequent download at any given time, and Red Giant shall have no liability to you in such event. As you may not be able to subsequently download certain previously-purchased Eligible Content, once you download an item of Eligible Content, it is your responsibility not to lose, destroy, or damage it, and you may want to back it up.
USE OF SOFTWARE PRODUCTS AND THE SOFTWARE PRODUCT SERVICE
You agree that the Software Product Service and certain Software Products include security technology that limits your use of Software Products and that, whether or not Software Products are limited by security technology, you shall use Software Products in compliance with the applicable usage rules established by Red Giant and its principals (“Usage Rules”), and that any other use of the Software Products may constitute a copyright infringement. Any security technology is an inseparable part of the Software Products. Red Giant reserves the right to modify the Usage Rules at any time. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to such Usage Rules for any reason—or to attempt or assist another person to do so. Usage Rules may be controlled and monitored by Red Giant for compliance purposes, and Red Giant reserves the right to enforce the Usage Rules without notice to you. You agree not to access the Software Product Service by any means other than through software that is specified or provided by Red Giant for accessing the Software Product Service. You shall not access or attempt to access an Account that you are not authorized to access. You agree not to modify the software in any manner or form, or to use modified versions of the software, for any purposes including obtaining unauthorized access to the Software Product Service. Violations of system or network security may result in civil or criminal liability.
The delivery of Software Products does not transfer to you any promotional use rights in the Software Products.
You acknowledge that, because some aspects of the Software Product Service, Software Products, and administration of the Usage Rules entails the ongoing involvement of Red Giant, if Red Giant changes any part of or discontinues the Software Product Service, which Red Giant may do at its election, you may not be able to use Software Products to the same extent as prior to such change or discontinuation, and that Red Giant shall have no liability to you in such case.
SUBMISSIONS TO THE SOFTWARE PRODUCT SERVICE
The Software Product Service may from time to time offer interactive features that allow you to submit materials (including links to third-party content) on areas of the Software Product Service accessible and viewable by other users of the Software Product Service and the public. You agree that any use by you of such features, including any materials submitted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You also agree that you have obtained all necessary rights and licenses. You agree to provide accurate and complete information in connection with your submission of any materials on the Software Product Service. You hereby grant Red Giant a worldwide, royalty-free, nonexclusive license to use such materials as part of the Software Product Service, and in relation to Software Products, without any compensation or obligation to you. Red Giant reserves the right to not post or publish any materials, and to remove or edit any material, at any time in its sole discretion without notice or liability.
Red Giant has the right, but not the obligation, to monitor any materials submitted by you or otherwise available on the Software Product Service, to investigate any reported or apparent violation of this Agreement, and to take any action that Red Giant in its sole discretion deems appropriate, including, without limitation, termination hereunder or under Red Giant’s Copyright Policy at http://www.redgiantsoftware.com/support/buyers-guide/copyright/.
Certain content, Software Products, and services available via the Software Product Service may include materials from third parties. Red Giant may provide links to third-party websites as a convenience to you. You agree that Red Giant is not responsible for examining or evaluating the content or accuracy and Red Giant does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that Red Giant is not in any way responsible for any such use by you.
You understand that by using the Software Product Service, you may encounter material that you may deem to be offensive, indecent, or objectionable, and that such content may or may not be identified as having explicit material. Nevertheless, you agree to use the Software Product Service at your sole risk and Red Giant shall have no liability to you for material that may be found to be offensive, indecent, or objectionable. Software Product types and descriptions are provided for convenience, and you agree that Red Giant does not guarantee their accuracy.
You agree that the Software Product Service, including but not limited to Software Products, graphics, user interface, audio clips, editorial content, and the scripts and software used to implement the Software Product Service, contain proprietary information and material that is owned by Red Giant and/or its principals, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Software Product Service in compliance with this Agreement. No portion of the Software Product Service may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Software Product Service in any manner, and you shall not exploit the Software Product Service in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
Notwithstanding any other provision of this Agreement, Red Giant and its principals reserve the right to change, suspend, remove, or disable access to any Software Products, content, or other materials comprising a part of the Software Product Service at any time without notice. In no event will Red Giant be liable for making these changes. Red Giant may also impose limits on the use of or access to certain features or portions of the Software Product Service, in any case and without notice or liability.
All copyrights in and to the Software Product Service (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by Red Giant and/or its principals, who reserve all their rights in law and equity. THE USE OF THE SOFTWARE OR ANY PART OF THE SOFTWARE PRODUCT SERVICE, EXCEPT FOR USE OF THE SOFTWARE PRODUCT SERVICE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
Red Giant, the Red Giant logo and other Red Giant trademarks, service marks, graphics, and logos used in connection with the Software Product Service are trademarks or registered trademarks of Red Giant, LLC in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Software Product Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
If you fail, or Red Giant suspects that you have failed, to comply with any of the provisions of this Agreement, Red Giant, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or your Account, and you will remain liable for all amounts due under your Account up to and including the date of termination; and/or (ii) terminate the license to the software; and/or (iii) preclude access to the Software Product Service (or any part thereof).
Red Giant reserves the right to modify, suspend, or discontinue the Software Product Service (or any part or content thereof) at any time with or without notice to you, and Red Giant will not be liable to you or to any third party should it exercise such rights.
DISCLAIMER OF WARRANTIES; LIABILITY LIMITATIONS
RED GIANT DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SOFTWARE PRODUCT SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME RED GIANT MAY REMOVE THE SOFTWARE PRODUCT SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SOFTWARE PRODUCT SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE PRODUCT SERVICE IS AT YOUR SOLE RISK. THE SOFTWARE PRODUCT SERVICE AND ALL PRODUCTS AND SOFTWARE PRODUCT SERVICE DELIVERED TO YOU THROUGH THE SOFTWARE PRODUCT SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY RED GIANT) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
IN NO CASE SHALL RED GIANT, ITS MANAGERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE SOFTWARE PRODUCT SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SOFTWARE PRODUCT SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE PRODUCT SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, RED GIANT'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
RED GIANT SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SOFTWARE PRODUCT SERVICE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND RED GIANT HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
RED GIANT DOES NOT REPRESENT OR GUARANTEE THAT THE SOFTWARE PRODUCT SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND RED GIANT DISCLAIMS ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY SOFTWARE PRODUCTS PURCHASED FROM THE SOFTWARE PRODUCT SERVICE.
WAIVER AND INDEMNITY
BY USING THE SOFTWARE PRODUCT SERVICE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD RED GIANT, ITS MANAGERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SOFTWARE PRODUCT SERVICE, OR ANY ACTION TAKEN BY RED GIANT AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM RED GIANT, ITS MANAGERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SOFTWARE PRODUCT SERVICE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF RED GIANT'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
Red Giant reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Software Product Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Software Product Service will be deemed acceptance thereof.
This Agreement constitutes the entire agreement between you and Red Giant and governs your use of the Software Product Service, superseding any prior agreements between you and Red Giant. You also may be subject to additional terms and conditions that may apply when you use affiliate services, certain Software Products, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Red Giant's failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. Red Giant will not be responsible for failures to fulfill any obligations due to causes beyond its control.
The Software Product Service are operated by Red Giant from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Software Product Service. All transactions on the Software Product Service are governed by Utah law, without giving effect to its conflict of law provisions. Your use of the Software Product Service may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Red Giant or relating in any way to your use of the Software Product Service resides in the state and federal courts sitting in Salt Lake County, Utah USA. Risk of loss and title for all electronically delivered transactions pass to the purchaser in Utah upon electronic transmission to the recipient. No Red Giant employee or agent has the authority to vary this Agreement.
Red Giant may notify you with respect to the Software Product Service by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by posting on the Software Product Service. Notices shall become effective immediately.
Red Giant reserves the right to take steps Red Giant believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that Red Giant has the right, without liability to you, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Red Giant believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Red Giant's right to cooperate with any legal process relating to your use of the Software Product Service and/or Software Products, and/or a third-party claim that your use of the Software Product Service and/or Software Products is unlawful and/or infringes such third party's rights).
ADDITIONAL SOFTWARE PRODUCTS STORE TERMS AND CONDITIONS
LICENSE OF SOFTWARE PRODUCTS
The software products made available through the Red Giant Site (collectively, the “Software Products”) are licensed, not sold, to you. There are two (2) categories of Software Products, as follows: (i) those Software Products that have been developed, and are licensed to you, by Red Giant (“Red Giant Products”); and (ii) those Software Products that have been developed, and are licensed to you, by a third-party developer (“Third-Party Products”). The category of a particular Software Product (Red Giant Product or Third-Party Product) is identified on the Software Product.
Your license to each Software Product is subject to the Licensed Software End User License Agreement set forth below, and you agree that such terms will apply unless the Software Product is covered by a valid end user license agreement entered into between you and the licensor of that Software Product (the “Software Provider”), in which case the Software Provider’s end user license agreement will apply to that Software Product. The Software Provider reserves all rights in and to the Software Product not expressly granted to you.
You acknowledge that the license to each Red Giant Product that you obtain through the Red Giant Site, as defined below, is a binding agreement between you and Red Giant. You acknowledge that: you are acquiring the license to each Third-Party Product from the Software Provider; Red Giant is acting as agent for the Software Provider in providing each such Third-Party Product to you; and Red Giant is not a party to the license between you and the Software Provider with respect to that Third-Party Product. The Software Provider of each Third-Party Product is solely responsible for that Third-Party Product, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that Third-Party Product.
You acknowledge and agree that Red Giant and its subsidiaries are third-party beneficiaries of the Licensed Software End User License Agreement or the Software Provider’s end user license agreement, as the case may be, for each Third-Party Product. You also agree that, upon your acceptance of the terms and conditions of the license to any such Third-Party Product, Red Giant will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third-party beneficiary thereof.
B. USAGE RULES OF THE RED GIANT SOFTWARE PRODUCT SERVICE
Except as otherwise set forth herein,
(i) If you are an individual acting in your personal capacity, you may download and use an Software Product from the Red Giant Site for personal, non-commercial use on any computer that you own or control.
(ii) If you are a commercial enterprise or educational institution, you may download an Software Product for use by either (a) a single individual on each of the computer(s) used by that individual that you own or control or (b) multiple individuals on a shared computer that you own or control. For example, a single employee may use a Red Giant Software Product on both the employee’s desktop computer and laptop computer, or multiple students may serially use a Red Giant Software Product on a single computer located at a resource center or library. For the sake of clarity, each computer used serially by multiple users requires a separate license.
(iii) Use may require sign-in with the Red Giant ID used to download the Red Giant Software Product from the Red Giant Site. Red Giant Software Products can be updated through the Red Giant Site only.
RED GIANT SOFTWARE PRODUCT MAINTENANCE AND SUPPORT
Red Giant will be responsible for providing any maintenance and support services with respect to the Red Giant Products only, as specified in the Licensed Software End User License Agreement or the separate end user license agreement, as the case may be, or as required under applicable law. The Software Provider of any Third-Party Product will be solely responsible for providing maintenance and support services with respect to that Product, as specified in the Licensed Software End User License Agreement or the Software Provider end user license agreement, as the case may be, or as required under applicable law.
C. END USER LICENSE AGREEMENT FOR ALL RED GIANT SOFTWARE PRODUCTS
LICENSED SOFTWARE END USER LICENSE AGREEMENT
The Red Giant Software Products and Third-Party Products (collectively, “Red Giant Software Store Product(s)”) made available through the Red Giant Software Store (collectively, “Red Giant Store Service(s)”) are licensed, not sold, to you. Your license to each Red Giant Software Store Product that you obtain through the Red Giant Software Store Service is subject to your prior acceptance of this Licensed Software End User License Agreement (“Standard EULA”), and you agree that the terms of this Standard EULA will apply to each Red Giant Software Store Product that you license through the Red Giant Software Store Service, or that you obtain on disc or other tangible media, unless that Red Giant Software Product is covered by a valid end user license agreement between you and the Software Provider of that Red Giant Software Store Product, in which case the terms of that separate end user license agreement will govern. Your license to any Red Giant Product under this Standard EULA or separate end user license agreement is granted by Red Giant, and your license to any Third-Party Product under this Standard EULA or separate end user license agreement is granted by the Software Provider of that Third-Party Product. Any Red Giant Software Store Product that is subject to the license granted under this Standard EULA is referred to herein as the “Licensed Software”. The Software Provider or Red Giant as applicable (“Licensor”) reserves all rights in and to the Licensed Software not expressly granted to you under this Standard EULA.
a. Scope of License: This license granted to you for the Licensed Software by Licensor is limited to a nontransferable non-exclusive license to (i) use the Licensed Software on any central processing unit (“computer”) that you own or control and as permitted by the usage rules set forth in the Red Giant Software Store Terms and Conditions (the “Usage Rules”) during the term of this Agreement, and to use the documentation during the term of this Agreement in support of your use of the License Software .
b. Restrictions: This license does not allow you to use the Licensed Software on any computer that you do not own or control, and you hereby agree that you may not and will not do (or permit any other person or entity to do) any of the following:
(i) distribute or make the Licensed Software available over a network where it could be used by multiple devices at the same time;
(ii) rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed Software and, if you sell your computer to a third party, you must remove the Licensed Software from the computer before doing so;
(iii) copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Software, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Software);
(iv) make or have made any copies of the Licensed Software, documentation, or any portion thereof, except one copy solely for backup purposes;
(v) sublicense, disclose or transfer any copy of the Licensed Software or the documentation in whole or in part, to any third party
(vi) use the Licensed Software, documentation or any portion thereof after any expiration, termination or cancellation of this Agreement or any license granted hereunder.
(vii) modify, adapt, translate, decompile, reverse engineer, disassemble or otherwise derive a source code for the Licensed Software;
(viii) alter, change or remove any proprietary notices or confidentiality legends placed on or contained in the Licensed Software; or
(ix) use the trademarks contained on or in the Licensed Software except as in accordance with accepted trademark practice.
Any attempt to do any of the items referred to in this paragraph (b) is a violation of the rights of the Licensor and its licensors. If you breach this restriction, you may be subject to prosecution and damages.
The terms of this license will govern any upgrades provided by Licensor that replace and/or supplement the original Licensed Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
c. Consent to Use of Data: You agree that Licensor may collect and use technical data and related information—including but not limited to technical information about your computer, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Software. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
d. Termination. The license is effective until terminated by you or Licensor. Your rights under this license will terminate automatically without notice from the Licensor if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Licensed Software and destroy all copies, full or partial, of the Licensed Software.
e. External Services and Third-Party Materials. The Licensed Software may enable access to Licensor’s and/or third-party services and websites (collectively and individually, "External Services"). Use of the External Services requires Internet access and use of certain External Services requires you to accept additional terms. By using this software in connection with an Red Giant Software Store account, you agree to the latest Red Giant Software Store Terms and Conditions and Usage Rules, which you may access and review at http://www.redgiantsoftware.com/support/buyers-guide/store-terms-and-conditions/.
You understand that by using any of the External Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the External Services at your sole risk and that neither the Licensor nor its agents shall have any liability to you for content that may be found to be offensive, indecent, or objectionable.
Certain External Services may display, include or make available content, data, information, software or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the External Services, you acknowledge and agree that neither the Licensor nor its agents is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Neither the Licensor nor its agents warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
You agree that the External Services contain proprietary content, information and material that is owned by Licensor and/or its agents or licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External Services or in any manner that is inconsistent with the terms of this Standard EULA or that infringes any intellectual property rights of a third party or Red Giant. No portion of the External Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services, in any manner, and you shall not exploit the External Services in any unauthorized way whatsoever, including but not limited to, using the External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither Licensor nor its agents is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the External Services.
To the extent you choose to use or access such External Services and Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such External Services. Licensor may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
f. LIMITED WARRANTY. THE LICENSED SOFTWARE PRODUCT IS WARRANTED FOR A PERIOD OF NINETY (90) DAYS AFTER YOUR RECEIPT OF THE LICENSED SOFTWARE TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AND TO CONFORM TO RED GIANT’S SPECIFICATIONS. YOUR SOLE AND EXCLUSIVE REMEDY, AND RED GIANT'S SOLE LIABILITY SHALL BE THAT RED GIANT SOFTWARE WILL EITHER (A) PERMIT A RE-DOWNLOAD OF THE LICENSED SOFTWARE IF ORIGINALLY DELIVERED BY MEANS OF A DOWNLOAD, OR (B) IF DELIVERED VIA COMPACT DISC OR OTHER TANGIBLE MEDIA, REPLACE ANY SUCH COMPACT DISC(S) OR OTHER MEDIA NOT MEETING RED GIANT’S SPECIFICATIONS. YOU MUST REPORT ALL DEFECTS AND RETURN THE SOFTWARE TO RED GIANT WITHIN NINETY DAYS FOLLOWING THE DATE YOU RECEIVED THE LICENSED SOFTWARE PRODUCT.
g. NO OTHER WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED SOFTWARE ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OTHER THAN THE WARRANTY EXPRESSLY SET FORTH IN PARAGRAPH (f) ABOVE WITH RESPECT TO THE LICENSED SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED SOFTWARE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. YOU ASSUME THE ENTIRE LIABILITY FOR THE SELECTION AND USE FOR THE LICENSED SOFTWARE PRODUCT AND DOCUMENTATION, AND RED GIANT SHALL HAVE NO LIABILITIES FOR ANY ERRORS, MALFUNCTIONS, DEFECTS OR LOSS OF DATA FROM OR RELATING TO THE USE OF THE LICENSED SOFTWARE AND/OR DOCUMENTATION.
h. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
i. Export. You may not use or otherwise export or re-export the Licensed Software except as authorized by United States law and the laws of the jurisdiction in which the Licensed Software was obtained. In particular, but without limitation, the Licensed Software may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
j. Government Licensees. The Licensed Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
k. Governing Law. The laws of the State of Utah, excluding its conflicts of law rules, govern this license and your use of the Licensed Software without regard to that state’s conflicts of laws principles. Your use of the Licensed Software may also be subject to other local, state, national, or international laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You agree to the personal jurisdiction by and venue in the state and federal courts in Washington County, Oregon, and waive any objection to such jurisdiction or venue. The preceding provision regarding venue does not apply if you are a consumer based in the European Union. If you are a consumer based in the European Union, you may make a claim in the courts of the country where you reside. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Red Giant and you arising out of or in connection with your use of the Licensed Software, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
l. Term of License and Agreement. The term of the license granted by this Agreement, and the term of this Agreement granted to you pursuant to paragraph a shall commence upon your downloading the Licensed Software Product or opening of any package in which the Licensed Software Product was delivered to you. The license and all obligations of Red Giant shall terminate upon your discontinuing the use of the Licensed Software unless earlier terminated by Red Giant in accordance with paragraph m. All of your obligations under this Agreement and the rights of Red Giant under this Agreement shall survive any termination of the license for the longest time permitted by law.
m. Termination and Cancellation. This Agreement and the license granted by this Agreement may be terminated and/or canceled by Red Giant in the event you are in breach of any provision of this Agreement.
(i) This Agreement is the complete agreement and understanding of the parties with respect to the Software and documentation and supersedes all prior oral, written and other representations and agreements concerning such subject matter. This Agreement may only be amended by the express written consent of Red Giant.
(ii) Title in and to the Licensed Software and documentation remains exclusively in Red Giant , subject to express, limited and non-exclusive license granted to you pursuant to paragraph a.
(iii) Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction.
(iv) If any provision of this Agreement is determined to be invalid or unenforceable that provision shall be deemed severed from the remainder of this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
Last Updated: March 15, 2012
ND: 4852-3705-9342, v. 5