This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Deer Creek Marketing, LLC ("Deer Creek") for the Deer Creek software that accompanies this EULA, which includes associated media and Deer Creek Internet-based services ("Software"). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
Deer Creek reserves the right to update and change, from time to time, this EULA and all documents incorporated by reference herein. You can always find the most recent version of the EULA at http://www.graphearth.com/index.php/about-us/software-eula/. Deer Creek may change this EULA by posting a new version without notice to you. Use of the Software after such change constitutes your acceptance of such changes.
1. GRANT OF LICENSEDeer Creek grants you the following rights provided that you comply with all terms and conditions of this EULA:
1.1 Installation and Use You may install and use one copy of the Software on one personal computer or other device.
1.2 Alternative Rights for Storage/Network UseAs an alternative to Section 1.1, you may install a copy of the Software on a network storage device, such as a server computer, and allow one access device, such as a personal computer, to access and use that licensed copy of the Software over a private network. You must obtain a license to the Software for each additional device that accesses and uses the Software installed on the network storage device, except as permitted by Section 1.4 of this EULA.
1.3 License Grant for Remote DesktopYou may use remote access technologies, such as the Remote Desktop features in Microsoft Windows to access and use your licensed copy of the Software, provided that only the primary user of the device hosting the remote desktop session accesses and uses the Software with a remote access device. These remote desktop rights do not permit you to use the Software on both the device hosting the remote desktop session and the access device at the same time.
1.4 License Grant for Remote AssistanceYou may permit any device to access and use your licensed copy of the Software for the sole purpose of providing you with technical support and maintenance services.
1.5 License Grant for Media ElementsThe Software may include certain photographs, clip art, shapes, animations, sounds, music and video clips that are identified in the Software for your use (together "Media Elements"). You may copy and modify the Media Elements, and license, display and distribute them, along with your modifications as part of your software products and services, including your web sites, but you are not licensed to do any of the following:
In addition, you must (a) indemnify and defend Deer Creek from and against any claims or lawsuits, including attorneys' fees that arise from or result from the licensing, use or distribution of Media Elements as modified by you, and (b) include a valid copyright notice on your products and services that include the Media Elements.
1.6 License Grant for DocumentationThe documentation that accompanies the Software is licensed for internal, non-commercial reference purposes only.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
2.1 Mandatory ActivationTHERE ARE TECHNOLOGICAL MEASURES IN THIS SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. You may not be able to exercise your rights to the Software under this EULA after a finite number of product launches on machines possessing noticeably different hardware and software configurations. You may also need to reactivate the Software if you modify your existing computer hardware or alter the Software. Deer Creek will use those measures to confirm you have a legally licensed copy of the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Software or future Software updates.
2.2 Internet-Based ServicesYou may not use any Deer Creek Internet-based services associated with the Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them. You may not attempt to gain unauthorized access to any service, account, computer systems or networks associated with the Internet-based services.
3. RESERVATION OF RIGHTS AND OWNERSHIPDeer Creek reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Deer Creek or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. This EULA does not grant you any rights to trademarks or service marks of Deer Creek.
4. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLYYou may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
5. NO RENTAL/COMMERCIAL HOSTINGYou may not rent, lease, lend or provide commercial hosting services with the Software.
6. CONSENT TO USE OF DATA You agree that Deer Creek and its affiliates may collect and use technical information gathered as part of the product support services provided to you, if any, related to the Software. Deer Creek may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
7. LINKS TO THIRD PARTY SITESDeer Creek is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. Deer Creek is providing these links and access to third-party sites and services to you only as a convenience, and the inclusion of any link or access does not imply an endorsement by Deer Creek of the third-party site or service.
8. ADDITIONAL SOFTWARE/SERVICESThis EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Deer Creek may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms. Deer Creek reserves the right to discontinue Internet-based services provided to you or made available to you through the use of the Software.
9. UPGRADESTo use Software identified as an upgrade, you must first be licensed for the software identified by Deer Creek as eligible for the upgrade. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as part of the upgraded software.
10. NOT FOR RESALE SOFTWARESoftware identified as "Not for Resale" or "NFR," may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation.
11. EXPORT RESTRICTIONSYou acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
12. SEPARATION OF COMPONENTSThe Software is licensed as a single product. Its component parts may not be separated for use on more than one device.
13. TERMINATIONWithout prejudice to any other rights, Deer Creek may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Software and all of its component parts.
14. LIMITED WARRANTY FOR SOFTWARE ACQUIRED IN THE US AND CANADADeer Creek warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (30) days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the thirty day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Deer Creek, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Deer Creek's Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 16 ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. Deer Creek's and its suppliers' entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Software shall be, at Deer Creek's option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to Deer Creek with a copy of your receipt. You will receive the remedy elected by Deer Creek without charge, except that you are responsible for any expenses you may incur. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (15) days, whichever is longer, and Deer Creek will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Deer Creek's warranty remedy procedures. Outside the United States or Canada, neither these remedies nor any product support services offered by Deer Creek are available without proof of purchase from an authorized international source.
15. DISCLAIMER OF WARRANTIESThe Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Deer Creek and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
16. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGESTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DEER CREEK OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF DEER CREEK OR ANY SUPPLIER, AND EVEN IF DEER CREEK OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. LIMITATION OF LIABILITY AND REMEDIESNotwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Deer Creek and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Deer Creek with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Software up to the amount actually paid by you for the Software or US$5.00. The foregoing limitations, exclusions and disclaimers (including Sections 14, 15 and 16) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
18. APPLICABLE LAWThis EULA is governed by the laws of the State of Texas. If you acquired this Software in the European Union, Iceland, Norway, or Switzerland, then local law applies. If you acquired this Software in any other country, then local law may apply.
19. ENTIRE AGREEMENT; SEVERABILITYThis EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between you and Deer Creek relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any Deer Creek policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
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