Terms of Use

Last Revised: February 15, 2017

 

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS” ) CAREFolLY. THIS WEBSITE AND ANY OTHER WEBSITES OF RED GIANT, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY RED GIANT.  THESE TERMS GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET TRAFFIC VISITING THE WEBSITE.  BY ACCESSING OR USING THIS WEBSITE IN ANY WAY, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH RED GIANT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF RED GIANT YOU HAVE NAMED AS THE USER, AND TO BIND THAT RED GIANT TO THE TERMS.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU ARE ON THE WEBSITE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THIS WEBSITE.

IF YOU SUBSCRIBE TO ANY SOFTWARE MADE AVAILABLE FOR LICENSE ON THE WEBSITE (“SOFTWARE”) FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT RED GIANT’S THEN-CURRENT FEE FOR SUCH SUBSCRIPTION SOFTWARE UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 6.4 BELOW.

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY RED GIANT IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Red Giant will make a new copy of the Terms available at the Website.  We will also update the “Last Updated” date at the top of the Terms. Red Giant may require you to provide consent to the updated Terms in a specified manner before further use of the Website is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website.  Otherwise, your continued use of the Website constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

 

1. Use of the Services and Red Giant Properties.  The Software, the Website and the information and content available on the Website (as these terms are defined herein) (collectively, the “Red Giant Properties” ) are protected by copyright laws throughout the world.  
   1. Software.  Use of any Software is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software.  These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed.  You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement.  At no time will Red Giant provide you with any tangible copy of our Software.  Red Giant shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation.  For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium.  Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis.  If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes.  Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
   2. Certain Restrictions.  The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Red Giant Properties or any portion of Red Giant Properties, including the Website,  (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Red Giant Properties (including images, text, page layout or form) of Red Giant; (c) you shall not use any metatags or other “hidden text” using Red Giant’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Red Giant Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Red Giant Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Red Giant Properties. Any future release, update or other addition to Red Giant Properties shall be subject to the Terms.  Red Giant, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of Red Giant Properties terminates the licenses granted by Red Giant pursuant to the Terms.
2. Registration.
   1. Registering Your Account.  In order to access certain features of Red Giant Properties you may be required to become a Registered User.  For purposes of the Terms, a “Registered User” is an end user of the Website (“User”) who has registered an account on the Website (“Account”).
   2. Registration Data.  In registering an Account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the  registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Red Giant Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.   You agree to notify Red Giant immediately of any unauthorized use of your password or any other breach of security.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Red Giant has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Red Giant has the right to suspend or terminate your Account and refuse any and all current or future use of Red Giant Properties (or any portion thereof). You agree not to create an Account or use Red Giant Properties if you have been previously removed by Red Giant, or if you have been previously banned from any of Red Giant Properties.
3. Ownership.
   1. Red Giant Properties. You agree that Red Giant and its suppliers own all rights, title and interest in Red Giant Properties.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website.
   2. Your Content.  Red Giant does not claim ownership of any comments, posts, information or text you post, upload or otherwise make available on the Website (“Your Content”).  However, when you post or publish Your Content on or in Red Giant Properties, you hereby grant us a non-exclusive right to copy, display, perform, distribute, create derivative works of and otherwise use Your Content on the Website.  
   3. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Red Giant through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Red Giant has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Red Giant a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Red Giant Properties.
4. User Conduct. In connection with your use of Red Giant Properties, you shall not: (a) make available, post or upload (“Make Available”) any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, Red Giant personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; (f) intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court; (g) stalk or otherwise harass any other User of our Red Giant Properties; or (h) advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
5. Content Provided by Other Users.  Red Giant Properties may contain content, information, reviews, ratings and comments provided by other Users (“User Content”).  Red Giant is not responsible for and does not control User Content.  Red Giant has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content.  You use all User Content and interact with other Users at your own risk.
6. Fees and Purchase Terms.
   1. Payment.  You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Red Giant with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”).  Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing Red Giant with your credit card number and associated payment information, you agree that Red Giant is authorized to immediately invoice your Account for all fees and charges due and payable to Red Giant hereunder and that no additional notice or consent is required.  You agree to immediately notify Red Giant of any change in your billing address or the credit card used for payment hereunder.  Red Giant reserves the right at any time to change its prices and billing methods, either immediately upon posting on Red Giant Properties or by e-mail delivery to you.
   2. Software Subscription Fees.  You will be responsible for payment of the applicable fee subscription based Software license(s) (each, a “Subscription Software Fee”) at the time you create your Account and select your monthly or annual package, as applicable (each, a “Subscription Software Commencement Date”).  Except as set forth in the Terms, all fees for the Software are non-refundable.  No contract will exist between you and Red Giant for the Services until Red Giant accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
   3. Taxes.  Red Giant’s fees are net of any applicable Sales Tax.  If any Software, or payments for any Software, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Red Giant, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Red Giant for any liability or expense we may incur in connection with such Sales Taxes.  Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Red Giant is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
   4. Automatic Renewal.  Your subscription will continue indefinitely until terminated in accordance with the Terms.  After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Red Giant’s then-current price for such subscription.  You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date.  If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please log in and go to your account settings.  If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires.  However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  By subscribing, you authorize Red Giant to charge your Payment Provider now, and again at the beginning of any subsequent subscription period.  Upon renewal of your subscription, if Red Giant does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Red Giant may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment,  your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
   5. Disputes.  You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes should be notified to the following address: customerservice@redgiant.com.
7. Indemnification.  You agree to indemnify and hold Red Giant, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Red Giant Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your violation of the Terms; or (c) your violation of any applicable laws, rules or regulations.  Red Giant reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Red Giant in asserting any available defenses.  This provision does not require you to indemnify any of the Red Giant Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.  You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Red Giant Properties.
8. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF RED GIANT PROPERTIES IS AT YOUR SOLE RISK, AND RED GIANT PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  RED GIANT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. RED GIANT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) RED GIANT PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF RED GIANT PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF RED GIANT PROPERTIES WILL BE ACCURATE OR RELIABLE.
9. Limitation of Liability.
   1. Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL RED GIANT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH RED GIANT PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT RED GIANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF RED GIANT PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE RED GIANT PROPERTIES; (2) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON RED GIANT PROPERTIES; OR (3) ANY OTHER MATTER RELATED TO RED GIANT PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. NOTWITHSTANDING THE FOREGOING, RED GIANT DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY RED GIANT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A RED GIANT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
   2. Cap on Liability.  UNDER NO CIRCUMSTANCES WILL RED GIANT PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A RED GIANT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A RED GIANT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A RED GIANT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
   3. User Content. EXCEPT FOR RED GIANT’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN RED GIANT’S PRIVACY POLICY, RED GIANT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
   4. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RED GIANT AND YOU.
10. Term and Termination.  The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Red Giant Properties, unless terminated earlier in accordance with the Terms. Red Giant may terminate these Terms, including your access to the Website, in the event you violate any terms or conditions hereunder, upon notice to you.
11. International Users.  Red Giant Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.  These references do not imply that Red Giant intends to announce such Services or Content in your country.  Red Giant Properties are controlled and offered by Red Giant from its facilities in the United States of America. Red Giant makes no representations that Red Giant Properties are appropriate or available for use in other locations.  Those who access or use Red Giant Properties from other countries do so at their own volition and are responsible for compliance with local law.
12. General Provisions.
    1. Electronic Communications.  The communications between you and Red Giant use electronic means, whether you visit Red Giant Properties or send Red Giant e-mails, or whether Red Giant posts notices on Red Giant Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from Red Giant in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Red Giant provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.
    2. Assignment.  The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Red Giant’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    3. Force Majeure.  Red Giant shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    4. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to Red Giant Properties, please contact us at: support@redgiant.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
    5. Governing Law.  The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
    6. Notice.  Where Red Giant requires that you provide an e-mail address, you are responsible for providing Red Giant with your most current e-mail address.  In the event that the last e-mail address you provided to Red Giant is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Red Giant’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Red Giant at the following address:  Red Giant, LLC, 14525 SW Millikan Way #41659, Beaverton, OR 97005.  Such notice shall be deemed given when received by Red Giant by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    7. Waiver.  Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    8. Severability.  If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    9. Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
    10. Entire Agreement.  The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.