THIS LICENSE AGREEMENT (THIS “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS FOR YOUR USE OF THE LICENSED MATERIALS. THIS AGREEMENT IS A BINDING AGREEMENT BETWEEN YOU (“LICENSEE”) AND CREATOR PRESETS, LLC (“CREATOR PRESETS”). BY INSTALLING, COPYING, USING OR OTHERWISE ACCESSING THE LICENSED MATERIALS YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
All definitions can be found in Exhibit A (if the terms are not defined in the main body of the Agreement).
1.1 License Grant. Subject to and conditioned on Licensee’s continuous compliance with this Agreement and payment of the applicable fees, Creator Presets grants Licensee a perpetual, nonexclusive, nonsublicensable, nontransferable, limited license to Install and Access the Licensed Materials, in accordance with the other terms of this Agreement. The license granted hereunder shall entitle Licensee to Install a single primary copy of the specific Licensed Materials on one (1) Computer and permit Access to such primary copy of the Licensed Materials solely by Licensee, and solely for Licensee’s use. Licensee may also Install a single additional copy of such Licensed Materials on one (1) additional Computer provided that such additional copy of the Licensed Materials is Accessed solely by Licensee solely to perform work while away from Licensee’s usual work location and the primary and additional copies are not Accessed at the same time.
1.2 Additional Terms. The Licensed Materials (or portions thereof) may be subject to terms (e.g., terms accompanying such Licensed Materials or made available in connection with ordering, installing, downloading, accessing, using or copying such Licensed Materials) that are in addition to or different from the terms set forth in this Agreement, and Licensee agrees to comply with such terms.
1.3 Other Materials. If Creator Presets provides or makes available to Licensee any additional materials associated with the Licensed Materials, including any corrections, patches, service packs, updates or upgrades to, or new versions of, the Licensed Materials (including upgrades) or any Supplemental Materials or User Documentation for the Licensed Materials, (a) such additional materials may include or be subject to other terms in addition to or different from the terms set forth in this Agreement (including, without limitation, additional or different fees, license terms, or restrictions on use), and Licensee agrees to comply with such terms, or (b) if there are no other terms for such additional materials, they will (except as otherwise provided herein as the Licensed Materials to which such additional materials apply.
1.4 Authorized Users. Licensee may permit the Licensed Materials to be Installed and/or Accessed only by Licensee.
1.5 Archival Copy. The license granted hereunder includes the right to make a single archival copy of the Licensed Materials, provided that (a) the single-copy limitation will not apply to copies made as an incidental part of a routine backup of Licensee’s entire computer system on which the Licensed Materials are Installed in accordance with this Agreement, where such backup includes the making of copies of substantially all other software on such computer system and (b) any archival copy may be Accessed or Installed (other than on a backup storage medium from which the Licensed Materials cannot be Accessed) only when and for so long as the primary copy of the Licensed Materials is inaccessible and inoperable.
2. License Limitations; Prohibitions
2.1 Limitations and Exclusions.
2.1.1 Unauthorized Activities. The parties acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, no license is granted (a) to any Licensed Materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this Agreement, (b) for Installation of or Access to the Licensed Materials beyond the applicable license term or outside the scope of the License, (c) for Installation of the Licensed Materials on any Computer other than a Computer owned or leased, and controlled, by Licensee, unless otherwise authorized in writing by Creator Presets, (d) to distribute, rent, loan, lease, sell, sublicense, transfer or otherwise provide all or any portion of the Licensed Materials to any person or entity except as expressly set forth in this Agreement or as expressly authorized in writing by Creator Presets, (e) to provide or make available any features or functionality of the Licensed Materials to any person or entity other than to and for Licensee itself, whether or not over a network and whether or not on a hosted basis, (f) except as otherwise expressly provided for herein, to Install or Access or allow the Installation of or Access to the Licensed Materials over the Internet or other non-local network, including, without limitation, use in connection with a wide area network (WAN), virtual private network (VPN), virtualization, Web hosting, time-sharing, service bureau, software as a service, cloud or other service or technology, (g) to remove, alter or obscure any proprietary notices, labels or marks in the Licensed Materials, (h) to decompile, disassemble or otherwise reverse engineer the Licensed Materials, or (i) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the Licensed Materials for any purpose.
2.1.2 Effect of Unauthorized Use. Licensee will not engage in, and will not permit or assist any third party to engage in any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in Section 2.1 (collectively, “Unauthorized Uses”). Any such Unauthorized Use, and any Installation of or Access to the Licensed Materials provided under this Agreement, outside of the scope of the applicable license grants or otherwise not in accordance with this Agreement, constitute or result in infringement of Creator Presets’ intellectual property rights as well as a breach of this Agreement. Licensee will notify Creator Presets promptly of any such Unauthorized Uses or other unauthorized Installation or Access.
2.2.1 Licensee may not (i) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Creator Presets in connection with the Licensed Materials, or (ii) Install or Access the Licensed Materials with any product code, authorization code, serial number, or other copy-protection device not supplied by Creator Presets. Without limitation of the generality of the foregoing, Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any tool or technical protection measure provided or made available by Creator Presets for managing, monitoring or controlling Installation of or Access to Licensed Materials.
2.2.2 Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any usage restrictions, or to enable functionality disabled by Creator Presets, in connection with the Licnesed Materials. Licensee may not bypass or delete any functionality or technical limitations of the Licensed Materials that (or that are designed to) prevent or inhibit the unauthorized copying of, Installation or Access to the Licensed Materials.
3. All Rights Reserved
Creator Presets and its licensors retain title to and ownership of, and all other rights with respect to, the Licensed Materials and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. Licensee has only the limited licenses granted with respect to the Licensed Materials expressly set forth in this Agreement, and Licensee has no other rights, implied or otherwise.
4. Limitation of Liability and Disclaimers
4.1 Limited Warranty. Creator Presets warrants that, as of the date on which the Licensed Materials are delivered to Licensee and for ninety (90) days thereafter or if the license term is shorter, such shorter period (“Warranty Period”), the Licensed Materials will provide the general features and functions described in the User Documentation portion of the Licensed Materials. Creator Presets’ entire liability and Licensee’s exclusive remedy during the Warranty Period (“Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at Creator Presets’ option, (i) to attempt to correct or work around errors, if any, or (ii) to refund the license fees, if any, paid by Licensee and terminate this Agreement or the license specific to such Licensed Materials. Such refund is subject to the return, during the Warranty Period, of the Licensed Materials. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. CREATOR PRESETS DOES NOT SEEK TO LIMIT LICENSEE’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
4.2 Limitations Of Liability. IN NO EVENT WILL CREATOR PRESETS OR ITS SUPPLIERS HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY). IN ADDITION, THE LIABILITY OF CREATOR PRESETS AND ITS SUPPLIERS ARISING OUT OF OR RELATING TO ANY LICENSED MATERIALS, WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY LICENSEE FOR SUCH LICENSED MATERIALS.
4.3 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 4.1 (LIMITED WARRANTY), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CREATOR PRESETS AND ITS SUPPLIERS MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY LICENSED MATERIALS. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE LICENSED MATERIALS AND THE FEATURES OR FUNCTIONALITY IN THE LICENSED MATERIALS OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, CREATOR PRESETS DOES NOT WARRANT: (a) THAT THE OPERATION OR OUTPUT OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE; (b) THAT ERRORS WILL BE CORRECTED BY CREATOR PRESETS OR ANY THIRD PARTY; OR (c) THAT CREATOR PRESETS OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
4.4 Use Limitations. The Licensed Materials are designed for non-commercial, consumer use and are not intended for commercial professional use. Creator Presets will not be liable in any manner whatsoever for the results obtained through use of the Licensed Materials. Persons using the Licensed Materials are responsible for the supervision, management, and control of the Licensed Materials and the results of using the Licensed Materials.
Licensee hereby agrees to indemnify, defend, and hold harmless Creator Presets and its licensors, officers, directors, shareholders, employees, consultants and agents from and against any and all damages, suits, claims, actions, or demands, and any related liabilities, expenses and losses (including reasonable attorneys’ fees and other costs of defense) arising out of or in connection with, or are in any way related to any claim, which if true, would result in a breach by Licensee of this Agreement.
6. Term and Termination
6.1 Term; Termination or Suspension. Each license under this Agreement, with respect to each specific set of Licensed Materials covered by this Agreement, will become effective as of the latest to occur of: (a) this Agreement becoming effective, (b) payment by Licensee of the applicable fees, excluding licenses where no fees are required, or (c) delivery of the specific Licensed Materials. Each of Creator Presets or Licensee may terminate this Agreement and Licensee’s license as to Licensed Materials if the other party is in breach of this Agreement and fails to cure such breach within ten (10) days after written notice of the breach; however, if Licensee is in breach of Section 1 (License) or Section 2 (License Limitations; Prohibitions), Creator Presets may terminate this Agreement and Licensee’s license as to Licensed Materials, immediately upon written notice. Creator Presets may also terminate this Agreement if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee’s creditors.
6.2 Effect of Termination. Upon termination or expiration of this Agreement, the licenses granted hereunder will terminate. Upon termination or expiration of any license granted to Licensee, Licensee must cease all use of Licensed Materials to which such license applies and Uninstall all copies of the Licensed Materials. At Creator Presets’ request, Licensee agrees to destroy or return to Creator Presets all Licensed Materials. Creator Presets reserves the right to require Licensee to show satisfactory proof that all copies of the Licensed Materials have been Uninstalled.
6.3 Survival. Sections 1.2 (Additional Terms), 1.3 (Other Materials), 1.4 (Authorized Users), 2.1.1 (Unauthorized Activities), 2.1.2 (Effect of Unauthorized Use), 2.2 (Circumvention), 3 (All Rights Reserved), 4 (Limitations of Liability and Disclaimers), 6 (Term and Termination), and 7 (General Provisions) and Exhibit A will survive any termination or expiration of this Agreement.
7. General Provisions
7.1 Notices. Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS or FedEx ), except that Licensee may not provide notice to Creator Presets of an Creator Presets breach or provide notice of termination of this Agreement by electronic mail. Notices from Creator Presets to Licensee will be effective (a) in the case of notices by email, one (1) day after sending to the email address provided to Creator Presets, or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Creator Presets. Licensee hereby consents to service of process being effected on Licensee by registered mail sent to the address provided to Creator Presets by Licensee if so permitted by applicable law. Notices from Licensee to Creator Presets will be effective (a) in the case of notices by email, one (1) day after sending to (and receipt by Creator Presets at) [email protected], or (b) in the case of notices by mail or delivery service, when received by Creator Presets at [email protected]
7.2 Governing Law and Jurisdiction. This Agreement shall be construed under the laws of the State of California with respect to contracts which are fully performed in said state. Each of the parties irrevocably submits to the exclusive jurisdiction and venue in the State of California, County of Los Angeles or United States Federal court sitting in Los Angeles County, in any dispute, claim, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that any such dispute, claim, action or proceeding may be heard and determined only in such State or Federal court. Each of the parties hereto: (a) waives any objection which it might have now or hereafter to venue as described above; (b) irrevocably submits to the jurisdiction of any such court in accordance with the foregoing; and (c) waives any claim or defense of inconvenient forum. Execution of the Agreement shall constitute the consent of each party to jurisdiction of the California State Courts and United States Federal Courts sitting in Los Angeles County and to service of copies of the summons and complaint and any other process which may be served in any such action or proceeding by the mailing or delivering of a copy of such process to such party at its address set forth above via certified mail. Nothing in this section shall affect either party’s right to serve process in any other manner permitted by law.
7.3 No Assignment; Insolvency. Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without Creator Presets’ prior written consent, which may be withheld in Creator Presets’ sole and absolute discretion, and any unauthorized purported assignment by Licensee will be void. In the context of any bankruptcy or similar proceeding, Licensee acknowledges and agrees this Agreement is and shall be treated as an executory contract that may not be assumed and/or assigned without Creator Presets’ prior written consent, which consent may be withheld in Creator Presets’ sole and absolute discretion whether pursuant to Section 365(c)(1) of Title 11 of the United States Code or any other applicable law respecting the treatment of executory contracts within bankruptcy.
7.4 Severability. If any provision of this Agreement shall be found invalid or unenforceable, then such provision shall not invalidate or in any way affect the enforceability of the remainder of this Agreement.
7.5 No Waiver. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
7.6 Audits. Licensee agrees that Creator Presets has the right to require an audit (electronic or otherwise) of the Licensed Materials and the Installation thereof and Access thereto. As part of any such audit, Creator Presets or its authorized representative will have the right, on fifteen (15) days’ prior notice to Licensee, to inspect Licensee’s records, systems and facilities, including machine IDs, serial numbers and related information, to verify Licensee’s Installation of and Access to the Licensed Materials. Additionally, within fifteen (15) days of the audit request, Licensee will provide to Creator Presets all records and information requested by Creator Presets in order to verify Licensee’s Installation of and Access to the Licensed Materials. Licensee will provide full cooperation to enable any such audit. If Creator Presets determines that Licensee’s Installation of or Access to the Licensed Materials is not in conformity with the applicable agreements or terms of service, Licensee will obtain immediately and pay for valid license(s) to bring Licensee’s Installation and Access into compliance and pay the reasonable costs of the audit. In addition to such payment rights, Creator Presets reserves the right to seek any other remedies available at law or in equity.
7.7 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations. If Licensee purchased the license for the Licensed Materials in Canada, Licensee agrees to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s’y rattachent, soient rédigés en langue anglaise.
7.8 Construction. If any provision of this Agreement conflicts with any provision of law, the latter shall prevail. However, such conflicting provisions shall be restricted only to the extent necessary to meet the applicable minimum requirements, and they shall not affect any other provision hereof or the validity or enforceability of this Agreement.
7.9 Force Majeure. Creator Presets shall be held liable or responsible or be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term or provision of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party, including, but not limited to, fire, floods, embargoes, war, acts of war (whether war be declared or not), insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority.
7.10 Export Control. Licensee acknowledges and agrees that the Licensed Materials are subject to the export control and trade sanctions laws, rules and regulations of the United States and may be subject to the export control and trade sanctions laws, rules and regulations of other countries, including but not limited to countries where Licensee is located or operates. Together, these United States and other country laws, rules, and regulations are referred to as the “Export Control Laws.” Licensee will comply with the Export Control Laws in all respects. Licensee represents, warrants and covenants that Licensee (i) is not a citizen or resident of, or located within, a nation or region that is subject to U.S. trade sanctions or other significant trade restrictions (including, without limitation, the Crimean peninsula, Cuba, Iran, Sudan, Syria and North Korea), (ii) is not identified on any applicable government restricted party lists (including, without limitation, the U.S. Treasury Department’s Sectoral Sanctions List and List of Specially Designated Nationals and Blocked Persons, the U.S. Department of Commerce’s Denied Party List, Entity List and Unverified List and the U.S. Department of State’s proliferation-related lists), (iii) will not, unless otherwise authorized under the Export Control Laws, use Licensed Materials in connection with any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear activities, chemical/biological weapons, rocket systems or unmanned air vehicles, or (iv) will not use the Licensed Materials to disclose, transfer, download, export, or re-export, directly or indirectly, any Licensee-specific output generated by the Licensed Materials, Licensee content, third party content, or any other content or material to any country, entity, or party that is ineligible to receive such items under the Export Control Laws or other laws or regulations to which Licensee may be subject. Licensee understands that the requirements and restrictions of the Export Control Laws as applicable to Licensee may vary depending on the Licensed Materials provided under this Agreement and may change over time. If Licensee learns that Licensed Materials has been provided to any person or entity in violation of the Export Control Laws, Licensee will notify Creator Presets immediately. If Creator Presets determines that a violation of the Export Control Laws should be disclosed to the applicable export control authority, provide such assistance and information as Creator Presets reasonably requests in connection with such disclosure.
7.11 Entire Agreement. This Agreement shall constitute the entire agreement between the parties, and supersede all prior agreements, written or oral. No subsequent alterations, changes or additions to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by the parties.
1. “Access” or “Accessible” means, with respect to a computer program or other materials, (a) to use or execute the computer program or other materials or (b) to use or otherwise benefit from the features or functionality of the computer program or other materials.
2. “Authorized User” means any individual person who Installs or Accesses, or is authorized to Install or Access, any of the Licensed Materials.
3. “Licensed Materials” means any materials distributed or made available by Creator Presets, directly or indirectly, including Presets, Supplemental Materials and User Documentation.
4. “Computer” means (i) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).
5. “Install” and “Installation” means, with respect to a computer program or other materials,
6. “Licensee” means (a) the company or other legal entity on behalf of which Licensed Materials are acquired, if the Licensed Materials are acquired on behalf of such an entity (e.g., by an employee, independent contractor, or other authorized representative), or (b) if there is no such entity, the individual who accepts this Agreement (e.g., by selecting the “I accept” button or other button or mechanism associated with this Agreement or otherwise indicating assent to this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Licensed Materials). For clarification, “Licensee” refers only to a single, specifically identified legal entity or individual, and does not include any subsidiary or affiliate of any such legal entity or individual or any other related person.
7. “Presets” means the digital photography editing filter presets, plug-ins and other tools distributed or made available by Creator Presets.
8. “Supplemental Materials” means materials, other than Presets and related User Documentation, that are distributed or made available by Creator Presets for use with Presets.
9. “Uninstall” means to remove or disable a copy of Licensed Materials from a hard drive or other storage medium through any means or otherwise to destroy or make unusable a copy of the Licensed Materials.
10. “User Documentation” means the explanatory or instructional materials for the Presets or Supplemental Materials.