End User License Agreement (EULA)
Welcome to PicScout.
This is a legal agreement between you and PicScout, with respect to your installation and Use of a beta version of PicScout's Image Exchange TM product (the "Agreement").
The “Product” is a beta version of a software application that operates within web image browsing environments and is intended to provide its users with certain information regarding the viewed images (such as information regarding the identity of the owner or licensor of such images) as well as a link driving the user directly to the image landing page. The Product shall also be deemed to include upgrades, modified versions and updates to the Product, if any, licensed to you by PicScout (collectively, “Updates”).
"Use" means to access, install, uninstall, download, activate, deactivate, copy or otherwise benefit from using the functionality of the Product.
BY CLICKING THE "I ACCEPT" BUTTON, INSTALLING OR USING THE PRODUCT, YOU AGREE TO (1) THIS AGREEMENT AND (2) THE PICSCOUT PRIVACY POLICY AT http://imagex.picscout.com/privacy (the “PicScout Privacy Policy”). IF YOU DISAGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, CLICK THE "I DO NOT ACCEPT" BUTTON AND THE INSTALLATION PROCESS WILL NOT BEGIN, OR DO NOT INSTALL OR USE THE PRODUCT. IF IT IS ALREADY INSTALLED, IMMEDIATELY REMOVE IT FROM YOUR SYSTEM, AS PICSCOUT DOES NOT GRANT YOU A LICENSE HEREUNDER.
PicScout reserves the right to update and modify, from time to time, this Agreement. You can find the most recent version of this Agreement at http://imagex.picscout.com/eula. PicScout may change this policy, effective ten days after posting a new version without notice to you. Installation or any Use of the Product after such change constitutes acceptance of such changes, and the changes will apply to causes of action arising after the effective date of the change. Without derogating from the aforesaid, PicScout shall make reasonable efforts to inform you that an amendment to the Agreement has been made, by means of a clearly stated message within the software application that shall appear during your first Use of the Product following any such amendment.
By accepting this Agreement, you represent to PicScout that you are of the minimum age required by the laws in the jurisdiction from which you make Use of the Product, that you are not a person barred, as a matter of law or otherwise, from Using the Product, and that you are fully able and competent to enter into the terms, conditions, representations and warranties set forth in this Agreement, and to abide by and comply with its terms.
Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
You understand that the Product is a beta version which may be a time-limited, feature-limited and/or functionality-limited version, and that it has not completed PicScout's full quality assurance program and may have errors and defects. You undertake to make reasonable efforts to provide PicScout with feedback regarding your Use of the Product by activating the “feedback” link or icon or such other link or icon designated by PicScout for this purpose. PicScout shall have a non-exclusive, royalty-free, worldwide, perpetual license to use and/or incorporate into the Product any such feedback.
1. Ownership, Licensed Uses and Restrictions
A. PicScout owns all rights, title, and interest in and to the Product, and all intellectual property rights therein are and shall remain its exclusive property. PicScout further owns all rights, title and interest in and to all data which is not Personally Identifiable Information available through your Use of the Product, including search and statistical data. PicScout will use Personally Identifiable Information in accordance with the PicScout Privacy Policy. As used throughout this Agreement and any documents referenced herein, the term “PicScout” shall mean PicScout (Israel) Ltd. “Personally Identifiable Information” refers to any information that identifies or can be used to identify, contact, or locate the person to whom such information pertains. This includes information that is used in a way that is personally identifiable, including linking it with identifiable information from other sources, or from which other personally identifiable information can easily be derived, including, but not limited to, name, address, phone number, fax number and email address. Personally Identifiable Information does not include information that is collected anonymously (i.e., without identification of the individual user).
B. Your Use of the Product may provide you with access to images and information regarding said images, including copyright information, provided to PicScout by certain third party persons or entities (the "Content Providers"). All images viewed through Use of the Product are the property of the respective copyright holder, and no license is granted to you with respect to such images.
C. Subject to the terms and conditions of this Agreement, you are granted a worldwide, non-exclusive, revocable, non-assignable, non-transferable, non-sublicenseable license to Use the Product, throughout the duration of the Agreement, in order to access image related data and a link to the image landing page, both accessible through Use of the Product, and in order to review, demonstrate and evaluate the Product by accessing, images, data and links as aforesaid. Other than the limited license granted herein, the license set out in this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by PicScout including, but not limited to, the Product and PicScout trademarks, nor does it grant you any right, title, or interest in any intellectual property to the images and/or image information accessed during and/or by Use of the Product, and creates no relationship between yourself and the Content Providers, and yourself and the copyright owners of images.
The Product is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in the Product or otherwise accessed through Use of the Product. Without derogating from the aforesaid, trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners' names. Trademarks can only be used to identify printed output produced by the Product and such Use of any trademark does not give you any rights of ownership in that trademark.
Notwithstanding the aforesaid, all rights not expressly granted to you herein are reserved by PicScout or their respective owners.
a. YOU MAY
Use the Product and any Updates provided by PicScout (in its sole discretion) in object code form for the purpose of obtaining certain image related data, including identifying the copyright holder of images, and accessing a link to the image landing page.
b. YOU MAY NOT AND YOU UNDERTAKE NOT TO:
(i) Decompile, reverse engineer, disassemble, modify, copy, alter rent, distribute, or create derivative works or improvements based upon the Product or any portion thereof, or otherwise attempt to discover the source code of the Product. Without derogating from the generality of the aforesaid, you are not authorized to use any software that facilitates you to modify and/or save any modifications to the Product;
(iii) Sell, lease, loan, or sublicense the Product, or any image related data obtained from Use of the Product, or provide access thereto or derive income from the Use or provision of the Product or any results therefrom including copyright information, whether for direct commercial or monetary gain or otherwise, without PicScout's prior, express, written permission;
(iii) Any information supplied by PicScout or obtained by you through your Use of the Product, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to that of PicScout;
(iv) Use the Product in any manner that could damage, disable, overburden, or impair PicScout's services (e.g., you may not Use the Product in an automated manner), nor may you Use the Product in any manner that could interfere with any other party's use and enjoyment of the Product;
(v) Use the Product in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement.
2. Updates; Future Availability
PicScout may elect to provide you with Updates, in its sole discretion, and may, at any time without notice or liability to you, change, improve, suspend, or discontinue any aspect, feature and/or functionality of the Product, including the availability of any Product feature, database, or content. PicScout may also impose limits on certain features and services or modify, discontinue or restrict your access to parts or all of the Product without notice or liability. Without derogating from the aforesaid, PicScout shall make reasonable efforts to provide you with updates regarding any major changes, as aforesaid, to the Product, by means of release notes to appear on PicScout’s website from time to time.
While PicScout intends to commercially release the Product, PicScout reserves the right at any time not to release said product or, even if released, to alter prices, features, specifications, capabilities, functions, general availability, or other characteristics of the product.
3. License Fee
The Product licensed hereunder is provided free of charge. Notwithstanding the aforesaid, PicScout reserves the right to charge fees for future Use of or access to the Beta Product, at PicScout’s sole discretion. If PicScout decides to charge for Use of the Beta Product, such charges will be disclosed in the relevant modified version of this Agreement.
4. Disclaimer of Warranties by PicScout
INSTALLATION AND/OR USE OF THE PRODUCT, AND ANY IMAGES AND/OR DATA ACCESSED THROUGH SUCH USE (SUCH AS COPYRIGHT DATA, OR OTHER INFORMATION) ARE PROVIDED, ON AN "AS IS, AS AVAILABLE, WITH ALL FAULTS" BASIS, AND ANY SERVICES, IMAGES OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCT IS EFFECTED AT YOUR OWN DISCRETION AND RISK. PICSCOUT, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND ASSIGNS (COLLECTIVELY, "PICSCOUT ENTITIES") DO NOT REPRESENT THAT THE PRODUCT, AND ANY IMAGES AND/OR DATA ACCESSED THROUGH SUCH USE, ARE COMPLETE OR ACCURATE, AND EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS OR IMPLIED), INCLUDING THE IMPLIED WARRANTIES OF TITLE, COMPLETENESS, ADEQUACY AND ACCURACY OF THE PRODUCT AND ANY IMAGE DATA ACCESSED THROUGH SUCH USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT. WITHOUT DEROGATING FROM THE GERERALITY OF THE AFORESAID, THE PICSCOUT ENTITIES DO NOT PROMISE THAT THE PRODUCT IS OR WILL BE ERROR-FREE, FREE FROM INTERRUPTIONS, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT DEFECTS WILL BE CORRECTED OR THAT IT OR THEY WILL BE ALWAYS ACCESSIBLE OR OTHERWISE RELIABLE, OR THAT THE FUNCTIONABILITY OF ENVIRONMENTS IN WHICH THE PRODUCT OPERATES SHALL NOT BE EFFECTED. FURTHERMORE, THE PICSCOUT ENTITIES DO NOT REPRESENT THAT YOUR USE OF THE PRODUCT WILL CONSTITUTE DILIGENT SEARCH OF COPYRIGHT OWNERSHIP, NOR THAT IMAGES REGARDING WHICH NO COPYRIGHT INFORMATION IS OBTAINED, THROUGH YOUR USE OF THE PRODUCT, CONSTITUTE ORPHAN WORKS.
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM AND/OR LOSS OF DATA AND/OR DAMAGE TO THIRD PARTIES THAT RESULTS FROM YOUR USE OF THE PRODUCT. IF THE PRODUCT OR ANY DATA ACCESSED THEREFROM PROVES DEFECTIVE, YOU (AND NOT THE PICSCOUT ENTITIES) ASSUME THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF THE PICSCOUT ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES.
THIRD PARTY CONTENT MAY APPEAR THROUGH USE OF THE PRODUCT OR MAY BE ACCESSIBLE BY WAY OF LINKS TO AND/OR FROM THE PRODUCT. PICSCOUT IS NOT RESPONSIBLE FOR AND ASSUMES NO LIABILITY WITH RESPECT TO SUCH THIRD PARTY CONTENT INCLUDING, WITHOUT LIMITATION, FOR ANY INFRINGEMENT, MISTAKES, INCORRECT AND/OR INCOMPLETE COPYRIGHT INFORMATION, DEFAMATION, SLANDER, LIBEL, OMISSIONS, FALSEHOODS, OBSCENITY, PORNOGRAPHY OR PROFANITY CONTAINED IN SUCH THIRD PARTY CONTENT OR ACCESSIBLE THROUGH IT. SOME LEGAL JURISDICITONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SET OUT IN THIS SECTION 4 SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE PICSCOUT ENTITIES SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE WHATSOEVER WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO, ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS, USE, DATA OR OTHER INTANGIBLE LOSSES, COMPUTER FAILURE OR MALFUNCTION (EVEN IF THE PICSCOUT ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO ANY USE OF THE PRODUCT OR ANY PERFORMANCE OF THIS AGREEMENT INCLUDING WITHOUT LIMITATION:
i. THE USE OR THE INABILITY TO USE THE PRODUCT; ii. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PRODUCT; iii. ANY USE OF COPYRIGHT INFORMATION ACCESSED THROUGH USE OF THE PRODUCT; iv. ANY COPYRIGHT INFRINGMENT CLAIMS RAISED AGAINST YOU; v. ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE PICSCOUT SOFTWARE BY ANY THIRD PARTY, AND ANY OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE PRODUCT; vi. ANY INCOMPATIBILITY BETWEEN THE PRODUCT ON THE ONE HAND AND ANY OTHER SERVICE, SOFTWARE OR HARDWARE ON THE OTHER HAND; vii. ANY CONTENT OF CONTENT PROVIDERS OR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; viii. ANY ERRORS IN OR OMISSIONS FROM THE PRODUCT AND ANY DATA ACCESSED THROUGH SUCH USE, INCLUDING BUT NOT LIMITED TO INACCURACIES WITH RESPECT TO COPYRIGHT INFORMATION; ix. ANY THIRD PARTY WEB SITES, OR ANY CONTENT THEREIN, THAT ARE ACCESSED DIRECTLY OR INDIRECTLY THROUGH LINKS PROVIDED BY PICSCOUT DURING USE OF THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM; x. THE UNAVAILABILITY OF THE PRODUCT, OR ANY PORTION THEREOF; xi. YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE PRODUCT; xii. THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE PRODUCT, ANY DATA ACCESSED THEREFROM, AND/OR THE EFFECT OF THE PRODUCT ON THE FUNCTIONABILITY OF ENVIRONMENTS IN WHICH THE PRODUCT OPERATES; OR xiii. ANY OTHER MATTER RELATING TO OR ARISING FROM THE PRODUCT.
DAMAGES EXCLUDED BY THIS SECTION 5 INCLUDE, WITHOUT LIMITATION, THOSE ARISING FROM YOUR RECEIPT OF INACCURATE COPYRIGHT INFORMATION WITH RESPECT TO AN IMAGE RESULTING IN AN INFRINGEMENT SUIT OR ACTION BEING BROUGHT AGAINST YOU, LOSS OF BUSINESS PROFITS, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OR PERSONAL INFORMATION. FURTHER IT IS EXPRESSLY AGREED THAT PICSCOUT SHALL NOT BE LIABLE FOR ANY THIRD PARTY COPYRIGHT INFRINGEMENT CLAIMS AGAINST YOU, AND YOU UNDERTAKE THAT, SHOULD ANY SUCH CLAIMS BE RAISED AGAINST YOU, YOU SHALL NOT CLAIM PICSCOUT LIABLE IN ANY MANNER, INCLUDING BY MEANS OF CLAIMING RELIANCE UPON THE COPYRIGHT INFORMATION ACCESSED THROUGH YOUR USE OF THE PRODUCT.
SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS RESTRICTION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL PICSCOUT’S AGGREGATE LIABILITY TO YOU RELATING TO, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT EXCEED THE SUM OF ONE HUNDRED UNITED STATES DOLLARS (US$100). BY USING THE PRODUCT, YOU EXPRESSLY AGREE THAT THE LIMITATIONS ON PICSCOUT’S LIABILITY CONTAINED IN THIS AGREEMENT ARE REASONABLE AND CONSTITUTE A MATERIAL INDUCEMENT TO PICSCOUT PROVIDING A LICENSE TO USE THE PRODUCT WTHOUT WHICH PICSCOUT WOULD NOT PROVIDE THE LICENSE TO USE THE PRODUCT.
6. Indemnification
You hereby agree to fully indemnify and agree to defend and hold harmless the PicScout Entities, from and against all claims, losses, expenses, damages and costs, including reasonable attorneys' fees, made by a third party resulting from any violation by you of this Agreement, your violation of applicable laws, or your violation of any rights of another person or entity.
7. Third Party Rights
The provisions of paragraphs 4 (Disclaimer of Warranties), 5 (Limitation of Liability), and 6 (Indemnification) are for the benefit of the PicScout Entities and of each of the other persons listed in paragraph 4. You agree that each of these individuals or entities has the right to assert and enforce those provisions directly against you on his, her or its own behalf.
8. Term; Termination
Your license to the Product under this Agreement shall remain valid for an unlimited duration until it is terminated by either party. You may terminate the Agreement by discontinuing Use of all of the Product and by uninstalling and destroying all your copies of the applicable Product. This Agreement terminates automatically if you violate any term of this Agreement, PicScout publicly posts a written notice of termination on PicScout's web site, or PicScout sends notice of termination to you. Upon termination of this Agreement the license granted herein will terminate and you: (i) will cease any and all rights to use the Product, and (ii) will remove the Product from all hard drives, networks and other storage media.
9. Confidentiality of Information
PicScout regards all information pertaining to the Product, including without limitation the structure, organization and code of the Product, which are valuable trade secrets and confidential information of PicScout, to be of a propriety and confidential nature. You undertake to protect the confidentiality of such information until such information becomes public by using the same degree of care, but not less than a reasonable degree of care, to prevent the unauthorized use, dissemination, or publication of such information as you use to protect its own confidential information of a like nature. You shall not make public in any manner this Agreement or any Use evaluation information arrived at pursuant to this Agreement.
10. Governing Law
This Agreement and the relationship between you and PicScout is governed by the laws of the State of Israel without regard to its conflict of law provisions. You and PicScout agree to submit to the personal and exclusive jurisdiction of the competent courts of Tel Aviv-Jaffa, Israel, and no other courts shall have any jurisdiction whatsoever in respect of such disputes arising in connection with this Agreement. The United Nations Convention on the International Sale of Goods does not apply to this Agreement.
11. No General Waiver; Severability
The failure of PicScout to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
12. Complete Agreement
This Agreement and the documents incorporated herein by reference constitute the entire understanding between you and PicScout respecting the Product, superseding all prior agreements between you and PicScout relating to the subject matter hereof.
13. Export Controls
You acknowledge that the Product may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to the Product as well as end-user, end-use and destination restrictions issued by national governments.
14. Government Use
If you are part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Product is a "commercial item", "commercial computer software" and "commercial computer software documentation". In accordance with such provisions, any use of the Product by the Government shall be governed solely by the terms of this Agreement.
15. Surviving Provisions
Sections 1A., 1B., 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 will survive any termination of this Agreement.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN.
Updated: October 12, 2009 Beta Test Version