READ CAREFULLY: THRIVENSOFT LLC. HEREINAFTER (“THRIVENSOFT”) LICENSES THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). BY COPYING, INSTALLING, UPLOADING, ACCESSING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU AGREE TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN THRIVENSOFT AND EITHER YOU PERSONALLY, IF YOU ACQUIRE THE SOFTWARE FOR YOURSELF, OR THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACQUIRING THE SOFTWARE. IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU REPRESENT: (A) DO NOT COPY, INSTALL, UPLOAD, ACCESS OR USE THE SOFTWARE; WITHIN THIRTY (30) DAYS FROM THE DATE OF ACQUISITION, RETURN THE SOFTWARE TO THE LOCATION WHERE YOU ACQUIRED IT FOR A REFUND. COPYING OR USE OF THIS SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION EXCEPT AS PERMITTED BY AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN SUCH SOFTWARE AND DOCUMENTATION. IF YOU COPY OR USE ALL OR ANY PORTION OF THIS SOFTWARE OR ITS USER DOCUMENTATION WITHOUT ENTERING INTO THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION OF THRIVENSOFT, YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW. YOU MAY BE LIABLE TO THRIVENSOFT AND ITS LICENSORS FOR DAMAGES, AND YOU MAY BE SUBJECT TO CRIMINAL PENALTIES.
1.1“Access” means to use or benefit from using the functionality of the Software.
1.2 “Computer” means 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.
1.3 “Install” means to place a copy of Software onto a hard disk or other storage medium through any means (including, but not limited to, use of an installation utility application accompanying the Software).
1.4 “License Parameters” means the definition and limitation of the applicable license scope in Section 2.2 hereof.
1.5 “Permitted Number” means a number relevant for the applicable License Parameters that THRIVENSOFT may specify in the applicable User Documentation. The Permitted Number is one (1) unless otherwise provided by THRIVENSOFT in writing.
1.6 “Software” means the computer application “IPTime Lapse” that makes Time lapse videos from digital Cameras. The term Software shall include all programs delivered to You as part of that series.
1.7“User Documentation” means the explanatory printed or electronic materials that THRIVENSOFT or its authorized distributor integrates into or delivers in or on a package with the Software or sends to You on an invoice, via email, facsimile or otherwise after You acquire or Install the Software, including, but not limited to, license specifications, activation code, license files, instructions on how to use the Software, and/or technical specifications.
1.8 “You”, means you personally (i.e., the individual who reads and is prompted to accept this Agreement) if you acquire the Software for yourself or the company or other legal entity for whom you acquire the Software.
1.9 “License Check” means the software mechanism that will periodically check the validity of Your license.
2.1 License Grant. THRIVENSOFT grants You a non-sublicensable, non-exclusive, non-transferable, limited license during the applicable Subscription Term as defined below to use copies of the Software in the jurisdiction in which you acquire the Software, in accordance with the applicable User Documentation, within the scope of the License Parameters. THRIVENSOFT’s license grant is conditioned on Your continuous compliance with all license limitations and restrictions described in this Agreement. If You violate any of these limitations or restrictions, the license grant will automatically and immediately expire. The license descriptions in this Section 2 define the scope of rights that THRIVENSOFT grants to You. Any usage of the Software outside the scope of the applicable license grant constitutes an infringement of THRIVENSOFT’s intellectual property rights as well as a material breach of this Agreement.
2.2 License Parameters. THRIVENSOFT’s license grant is subject to one or more of the License Parameters defined in this Section 2.2 as specified in the User Documentation. Unless THRIVENSOFT expressly specifies or agrees otherwise in the User Documentation, all Software shall be governed solely by a subscription license for Standalone (Individual) Versions (see Section 2.2.1).
2.2.1 Standalone (Individual) Version. If THRIVENSOFT identifies the Software as a “Standalone Version” or as an “Individual Version” or if the User Documentation does not identify the Software by any version designation, You may Install and Access one (1) copy of the Software on one (1) individual Computer, which must be connected to a network in a manner that allows more than one (1) user to Access, operate or view the Software. You may not Install the Software on more than one (1) computer at a time.
2.2.2 Subscription License Term. Subject to the terms and conditions of this Agreement, the term of the subscription is monthly, unless the Software is identified as an Evaluation Version, or Trial Version In such case, the term of the license shall be the term identified by THRIVENSOFT in the applicable User Documentation.The License Term shall expire ninety (30) days after the date You first Install the Software. The Term will be extended month to month as long as the recurring payment for the license is paid and the subscription is not canceled. Upon expiration of the of the designated term you shall remove all of the software from the Computer. Use of this Software beyond the applicable Subscription LicenseTerm, or any attempt to defeat the software protection function or denying THRIVENSOFT access to the computer to remove the Software constitutes a material violation of this Agreement and intellectual property law.
2 .3 License Checks. Our software will periodically reach out over the internet to check that your license is paid for, has not been canceled and that not more than 1 copy has not been installed on any other computer under your license key. If you attempt to disable this security feature by not allowing the computer it is installed on access to the internet to check the license then the software will cease functioning. Likewise if there is an accidental Network interruption it occurs at the same time our software does its security check, then It will cease to function. If you install a second copy on another computer and our security features detect that has been installed on another computer both versions of the software will cease working and you will be in direct violation of your license agreement.
2.4 Upgrades. If THRIVENSOFT labels the Software in the User Documentation as an upgrade or update (“New Version”) to software previously licensed to You (“Previous Version”), You must destroy all copies of the Previous Version, including any copies Installed on Your hard disk drive, and upon request by THRIVENSOFT return any User Documentation to THRIVENSOFT or the authorized distributor from whom You acquired the Previous Version within one hundred twenty (120) days of Installing the New Version. THRIVENSOFT reserves the right to require You to show satisfactory proof that the Previous Version has been destroyed. 2.4 Software Components. The Software is licensed to You as a single product and its components may not be separated for distribution.
3.1 Permitted Actions. Backup Copy. Regardless of which version of the Software You have acquired, You may Install one archival (backup) copy of the Software. Such archival copy may not be Installed on another Computer, unless such other Computer is a partitioned drive of a server to which only the user of the active copy of the Software can Access. In any event, the archival copy may not be Accessed as long as another copy of the Software is Installed on any Computer. Except as expressly permitted under Section 2.2: (a) if the User Documentation is in printed form, it may not be copied; and (b) if the User Documentation is in electronic form, it may not be duplicated electronically.
3.2 Prohibited Actions. THRIVENSOFT does not permit any of the following actions and You acknowledge that such actions shall be prohibited:
3.2.1 Use. You may not Install, Access or otherwise copy or use the Software or User Documentation except as expressly authorized by this Agreement.
3.2.2 Reverse Engineering. You may not reverse engineer, decompile, or disassemble the Software.
3.2.3 Transfers. You may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Software or User Documentation, or any rights granted in this Agreement, to any other person without the prior written consent of THRIVENSOFT.
3.2.4 Hosting or Third Party Use. You may not Install or Access, or allow the Installation or Access of, the Software over the Internet, including, without limitation, use in connection with a Web hosting or similar service, or make the Software available to third parties via the Internet on Your computer system or otherwise.
3.2.5 Modifications. You may not modify, translate, adapt, arrange, or create derivative works based on the Software or User Documentation for any purpose.
3.2.6 Circumvention. You may not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by THRIVENSOFT in connection with the Software, or use the Software together with any, authorization code, serial number, or other copy protection device not supplied by THRIVENSOFT directly or through an authorized distributor.
3.2.7 Export. You may not export the Software or User Documentation in violation of this Agreement, U.S. or other applicable export control laws.
3.2.8 Use Outside of Territory. You may not use the Software, including without limitation a Network Version, or User Documentation outside of the country in which you acquired the Software.
3.2.9 Exceptions from Prohibitions. The prohibitions contained in this Section 3.2 shall apply to the extent that applicable law (including laws implementing EC Directive 91/250 on the legal protection of computer programs) allows such prohibition to be enforced. You will bear the burden of proof in demonstrating that applicable law does not allow enforcement of any such prohibition.
4.1 Except as expressly provided otherwise in this Agreement, title, ownership and all rights and interest including, without limitation, copyrights, in and to the Software and User Documentation and any authorized copies made by You remain with THRIVENSOFT and its licensors. The structure, organization, and code of the Software are valuable trade secrets of THRIVENSOFT and its licensors and You shall keep such trade secrets confidential. The Software and User Documentation are licensed, not sold.
4.2 LIMITED WARRANTY AND DISCLAIMERS Limited Warranty. THRIVENSOFT warrants that, as of the date on which the Software is delivered by THRIVENSOFT and for thirty (30) days thereafter, the Software will provide the features and functions generally described in the User Documentation and that the media on which the Software is furnished, if any, will be free from defects in materials and workmanship. THRIVENSOFT's entire liability and Your exclusive remedy under the limited warranty provided in this Section 5.1 will be, at THRIVENSOFT's option, to attempt to correct or work around errors, to replace the defective media on which the Software is furnished, if any, or to refund the license fees and terminate this Agreement. Such refund is subject to the return of the defective media, if any, and User Documentation, with a copy of Your receipt to Your local THRIVENSOFT office or the authorized distributor from whom You obtained the Software within sixty (60) days from the date of Your receipt of the Software.
4.3 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 4.2 HEREOF, THRIVENSOFT MAKES AND YOU RECEIVE NO EXPRESS WARRANTIES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FUNCTIONALITY IN THE USER DOCUMENTATION OR ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. IN ADDITION, THRIVENSOFT SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THRIVENSOFT DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
5.1 Functionality Limitations. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SOFTWARE, THE SOFTWARE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED. THRIVENSOFT SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SOFTWARE. PERSONS USING THE SOFTWARE ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF THE SOFTWARE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SOFTWARE AND THE SELECTION OF THE SOFTWARE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. PERSONS USING THE SOFTWARE ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY PROGRAM OUTPUT, INCLUDING ALL ITEMS DESIGNED BY USING THE SOFTWARE.
5.2 Activation Key Code Required. INSTALLATION, ACCESS, TRANSFERS AND CONTINUED USE OF THE SOFTWARE MAY REQUIRE AN ACTIVATION Key CODE. YOU MUST REGISTER YOUR ACQUISITION OF THE SOFTWARE WITH THRIVENSOFT BEFORE AN ACTIVATION CODE IS ISSUED TO YOU. THRIVENSOFT SHALL USE YOUR REGISTRATION DETAILS IN CONFORMANCE WITH ITS APPLICABLE PRIVACY POLICY, WHICH IS INCLUDED IN THE USER DOCUMENTATION OR AVAILABLE ON THRIVENSOFT’S WEBSITE OR ON REQUEST.
5.3 Deactivation THE ACTIVATION SECURITY MECHANISMS MAY DISABLE THE SOFTWARE IF YOU TRY TO TRANSFER IT TO ANOTHER COMPUTER, IF YOU TAMPER WITH THE DATE SETTING MECHANISMS ON YOUR COMPUTER, IF YOU USE THE SOFTWARE PAST AN APPLICABLE EVALUATION PERIOD OR LIMITED TERM, OR IF YOU UNDERTAKE CERTAIN OTHER ACTIONS THAT MAY OFFSET THE SECURITY MODE. MORE INFORMATION IS CONTAINED IN THE APPLICABLE USER DOCUMENTATION OR AVAILABLE FROM THRIVENSOFT ON REQUEST.
6.1 GENERAL. IN PERFORMING THIS AGREEMENT, YOU WILL COMPLY WITH ANY AND ALL APPLICABLE STATE AND GOVERNMENTAL REQUIREMENTS. YOU WILL, AT YOUR OWN EXPENSE, SECURE AND MAINTAIN ANY AND ALL REGISTRATIONS, PERMITS, LICENSES, APPROVALS AND OTHER GOVERNMENTAL ACTIONS REQUIRED TO COMPLY WITH ANY STATE OR GOVERNMENTAL REQUIREMENT OR LAW OR OTHERWISE PERFORM HEREUNDER AND WILL MAKE ALL FILINGS WITH GOVERNMENTAL AUTHORITIES REQUIRED OF USE OF THE PRODUCTS. THIS AGREEMENT IS IN ALL RESPECTS SUBJECT TO COMPLIANCE WITH ALL SUCH REQUIREMENTS. YOU WILL PROVIDE TO THRIVENSOFT ON REQUEST COPIES OF ALL REGISTRATIONS, PERMITS, LICENSES, APPROVALS, CERTIFICATES, CORRESPONDENCE AND OTHER DOCUMENTATION RELATED TO ANY SUCH ACTION. YOU WILL NOTIFY THRIVENSOFT OF ANY IMPENDING CHANGES TO GOVERNMENTAL REQUIREMENTS THAT PERTAIN TO, AND MAY NECESSITATE MODIFICATIONS TO, THE PRODUCTS OR SERVICES.
YOU WILL NOT ENGAGE IN ANY ILLEGAL ACTIVITIES. THRIVENSOFT WILL NOT BE HELD RESPONSIBLE FOR ANY OF YOUR ACTIVITIES THAT MAY BE CONSIDERED TO BE ILLEGAL.
IN NO EVENT SHALL THRIVENSOFT OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, REVENUE, DATA, OR COST OF COVER. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF THRIVENSOFT OR ITS LICENSORS FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU FOR THE SOFTWARE PRINCIPALLY RESPONSIBLE FOR SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 SHALL APPLY TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF THRIVENSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
The Software and User 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 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Software and User Documentation are being provided to U.S. Government end users (1) only as a Commercial Item, and (2) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Manufacturer is THRIVENSOFT, INC., P.O. Box 4561, Wilmington, DE 19807, USA.
10.1. No Assignment; Insolvency. This Agreement and any rights hereunder are non-assignable and any purported assignment shall be void. The Agreement and the licenses granted hereunder shall terminate without further notice or action by THRIVENSOFT if You become bankrupt or insolvent, make an arrangement with Your creditors or go into liquidation.
10.2. Choice of Law. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by Delaware law without reference to conflict-of-laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.
10. 3 Entire Agreement. This Agreement and the applicable User Documentation constitute the entire agreement between us and supersede any other previous or contemporaneous communications, agreements, representations, or advertising with respect to the Software and User Documentation. Any modifications to this Agreement shall be invalid, unless made in a duly signed writing.
10.4 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction.
10.5 Audits. To ensure compliance with this Agreement, You agree that upon reasonable notice, THRIVENSOFT or THRIVENSOFT’s authorized representative shall have the right in inspect and audit Your Installation, Access and use of the Software. Any such inspection or audit shall be conducted during regular business hours at Your facilities or electronically. If such inspections or audits disclose that You have Installed, Accessed or permitted Access to the Software on Computer(s) in a manner that is not permitted under this Agreement, then THRIVENSOFT may terminate this Agreement immediately and You are liable to pay for any unpaid license fees as well as the reasonable costs of the audit. Nothing in this section shall be deemed to limit any legal or equitable remedies available to THRIVENSOFT for violation of this Agreement or applicable law.
10.6 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.
10.7 Canadian License. If You purchased the license for this Software in Canada, You agree to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating thereto, 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 anglais
Thrivensoft LLC.