END USER LICENSE AGREEMENT (“EULA")
Revision Date: August 1, 2012
BY USING THIS SOFTWARE YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE AND RETURN THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.
This is a contract between you and FotoWare a.s of Oslo, Norway (“FotoWare"). Sometimes you are referred to as “Company", “Customer", “you" or “your" and FotoWare is referred to as “we," “us" or “our".
FotoWare grants to you a non-exclusive license to use the Software Product (“Software") and accompanying documentation ("Documentation") in the manner described below, in accordance with the license issued to you by FotoWare (“License").
1. PRODUCTS COVERED
This EULA covers Software Products you have licensed from FotoWare, which are defined as products intended for direct and interactive use by an end-user in your organization from a client computer, terminal, or handheld device (“Client Products"), for installation and use on a server and indirect access by end-users in your organization (“Server Products"), or accessible to you over the Internet and run, managed, and serviced by FotoWare (“Cloud Service").
The conditions in this EULA apply to all Software from FotoWare, unless specifically noted otherwise, and with specific terms and exceptions for the following products:
i. Color Factory
A Server Product for building automatic workflows, and image manipulation and enhancement.
A Server Product for building automatic file transmission workflows.
iii. FotoStation Stand Alone
A Client Product for managing file and photo workflows and archiving digital photos.
iv. FotoStation Home and Small Business
A Client Product for managing file and photo workflows and archiving digital photos.
v. FotoStation Client
A Client Product for managing file and photo workflows, archiving digital photos, and accessing and controlling functionality in the Server Products.
A Server Product for web based file and photo workflows, and accessing and controlling functionality in other Server Products.
A Client Product for an enhanced user experience in conjunction with FotoWeb.
viii. Index Manager
A Server Product for building large archives of files and enhance the search experience for users of FotoStation and FotoWeb.
Each product is sold in one or more Editions, as indicated by the License. The specification of difference in functionality, features, and restrictions in each Edition is specified in the Documentation.
2. TYPES OF LICENSES
Your license from FotoWare will be one of the types defined below, and to which different conditions apply, as specified in the remainder of this EULA:
A. Retail Licenses
Retail Licenses are issued to customers that are purchasing a perpetual license to use the Software in accordance with this EULA. Your Software is covered by a time-limited warranty, but your right to use the Software is not time-limited.
B. Rented Licenses
If you have entered into a Rental Agreement for software with FotoWare for a specified period of time, as opposed to having purchased perpetual use of software license(s), you are bound to the terms set forth in the Software Rental Agreement. You may then use the Software only in accordance with the terms outlined in the Software Rental Agreement, and must terminate the use of licenses when they are no longer covered by the Software Rental Agreement, according to the terms stated in the Software Rental Agreement contract.
C. Redundancy Licenses
Redundancy Licenses are available as a secondary license for Server Products, and may be used to build fault-tolerant systems, where the Software running on the Redundancy License takes over functionality if (and only if) the Retail License fails to perform as intended. Redundancy Licenses may only be used in “hot/cold configurations", where at most one of the Licenses is active at any one time, and not in load-balanced or work-sharing configurations. Each Redundancy License must match one Retail License.
Redundancy Licenses are only available to Customers with a valid Software Maintenance Agreement with FotoWare.
Redundancy Licenses are valid for one year at a time, and the Software will cease to work when the License expires.
Redundancy Licenses must be renewed together with the Software Maintenance Agreement, and may not be used after cancellation or expiry of the Software Maintenance Agreement.
D. Staging Licenses
Staging Licenses are available as a secondary license for customers that have a Retail License for one or more Server Products, and may be used by the Customer to operate a test environment for the Software before using new versions of the Software or configurations in their production environment (running Retail Licenses).
Staging Licenses may only be used for demonstration, training, testing, and evaluation purposes, and any output files or other materials produced through such use are only for internal, non-commercial and non-production purposes.
Staging Licenses may not be used to operate in production mode, replacing a Retail License, even in the event of a failure of the production system. (This requires a Redundancy License.)
Staging Licenses are only available to customers with a valid Software Maintenance Agreement with FotoWare.
Staging Licenses are valid for one year at a time, and the Software will cease to work when the License expires.
Staging Licenses must be renewed together with the Software Maintenance Agreement, and may not be used after cancellation or expiry of the Software Maintenance Agreement.
E. Trial Licenses
Trial Licenses are time-limited licenses issued for the purpose of evaluating the Software with the intent of purchasing a Retail License. No FotoWare partner, reseller, or agent may charge for a trial license.
Trial Licenses may only be used for demonstration, training, and evaluation purposes, and any output files or other materials produced through such use are only for internal, non-commercial and non-production purposes.
The Software will cease to work when the license expires.
F. Not for Resale Licenses
Not for Resale (“NFR") Licenses are time-limited licenses issued for the purpose of demonstrating and selling the Software, and may be used solely by employees of companies that are Certified FotoWare Partners.
NFR Licenses may only be used for demonstration, training, and evaluation purposes, and any output files or other materials produced through such use are only for internal, non-commercial and non-production purposes.
NFR Licenses may only be used and accessed by employees of Certified FotoWare Partners, and it is explicitly prohibited to make the Software accessible to any third-party or to process data using the Software on behalf of any third-party.
The Software will cease to work when the license expires. Any and all use of the Software must be immediately terminated in the event that the Partner/Reseller agreement is terminated.
3. LICENSE GRANT
Your License entitles you to install and use the Software on as many computers and/or make it accessible to as many users as your License states. You may make the Software available and accessible only to users in your own organization (the legal entity to which the License is issued), or to subsidiaries which your organization owns 50% or more of.
A. Server Products
Each License of a Server Product may be installed one server, either physical or virtual, and made accessible to users in your organization. The functionality offered by the Server Products must not be made accessible to users outside your organization.
You may, as an exception to the above, make FotoWeb and FotoWeb Desktop accessible to users outside your organization, but you may not use FotoWeb to host content for other individuals or organizations.
B. Client Products
Licenses for Client Products are either granted as Named User Licenses or Concurrent User Licenses.
i. Named User Licenses
You may allow as many different individuals in your organization as stated on your License Card to access the Software. Each user may access the Software from only one computer at any one time, and in the event of switching computers, the Software must be deactivated and removed from the previous computer.
ii. Concurrent Licenses
You may install the software on an unlimited number of computers and terminal servers in your organization, and allow any number of users in your organization to access the software, but only as many as stated on your License Card may use the Software at any one time (concurrently).
Use of Concurrent Licenses are governed by a License Server which all computers running the Software must be able to access over a network connection in order to start/run the software.
Concurrent Licenses include a perpetual license to run the Software on Terminal Servers, and users may access the Software from an unlimited number of devices at the same time, provided the number of concurrent instances does not exceed that stated in the License.
C. Access to Client Products through Terminal Servers
Users of Named User Licenses covered by a valid Software Maintenance Agreement with FotoWare may run Client Products on one or more Terminal Servers.
FotoWare will issue a time-limited license certificate for this use, which is governed by a License Server. All Terminal Servers must be able to access this License Server over a network connection in order for users to start/run the Software.
You may be required to maintain a list of the named users (account user names) that are allowed to access the software on the Terminal Server as a part of running the License Server.
Customers must complete and submit to FotoWare a written, yearly license audit in order to renew the license for use on Terminal Servers.
You may at any time only use as many licenses on a Terminal Server as covered by your Software Maintenance Agreement.
If you choose to cancel your Software Maintenance Agreement with FotoWare, you may no longer access the Software via Terminal Servers, and access to the Software on the Terminal Server must be revoked from all users immediately following the cancellation of the agreement or removal of the License from the agreement.
D. Use on Virtual Servers
You may install the Software on virtual machines/servers.
You may make one backup copy of the virtual machine/server, complete with the Software, provided it is kept in “powered off" state, and not run at the same time as the primary server.
You may keep an unlimited number of snapshots of the virtual machine/server, provided it is stored on the same virtual server host as the running instance.
E. External hosting of the software
You may run the Software on hardware operated and maintained by a third party, as long as the use of the Software is in accordance with this EULA.
F. Hosting, rental, service providers
You may not use the Software to provide hosted services, resell any services based on the Software, or use the Software as a component in a hosted service to other individuals or organizations.
G. No transferable rights
You may not rent, lease, grant a security interest in, or otherwise transfer rights to the Software.
4. PRODUCT TERMS
Specific license terms and conditions for each product are listed below and apply to the product(s) you have a License for.
A. Color Factory
Color Factory includes geocoding functionality that works in conjunction with FotoWare's Geocoding Cloud Service (places.fotoware.com).
Customers with a valid Software Maintenance Agreement for Color Factory may enable the Geocoding Service on channels in Color Factory and process up to 1000 files per month. Although the service currently does not enforce rate limitations, FotoWare may at any time start enforcing such limitations, in which case it will be necessary for you to enter into an agreement for a Premium Subscription to increase monthly rate limits.
Your License does not include a Service Level Agreement (uptime guarantee) for the Geocoding Cloud Service. (This is available by purchasing a Premium Subscription, and governed by the agreement for the Premium Subscription.)
Your License for Color Factory may give you access to certain Application Programming Interfaces (APIs) that allow third-party products to control the Software, which may only be accessed and used by users that hold a license for one or more Client Products that includes a Client Access License for the Server Products.
B. FotoStation Stand Alone
FotoStation Stand Alone does not contain a Client Access License for the Server Products, and is not able to connect to the Server Products.
FotoStation Stand Alone edition is not licensed for use on Terminal Servers.
C. FotoStation Home and Small Business
FotoStation Home and Small Business does not contain a Client Access License for the Server Products, and is not able to connect to the Server Products.
FotoStation Home and Small Business edition is not licensed for use on Terminal Servers.
i. Portable or Home Computer Use
The primary user of the Computer on which the Software is installed may install a second copy of the Software for his or her exclusive use on either a portable computer or a computer located at his or her home, provided that the Software on the portable or home computer is not used at the same time as the Software on the primary computer.
D. FotoStation Client
The License for FotoStation Client includes a Client Access License that grants access to the services provided by the Server Products.
You may install FotoStation Client on one device for each Named User License.
FotoStation Client (Named and Concurrent Licenses) may be used on Terminal Servers, provided you have a valid Software Maintenance Agreement with FotoWare, and in accordance with the terms set forth in the section 'Access to Client Products through Terminal Servers'.
All licensed users of FotoWeb are covered by a Client Access License included with FotoWeb that grants access to the services provided by the Server Products.
i. Map Component
FotoWeb includes components from Google and Microsoft to display maps, showing the location of one or more assets. You may activate this component as described in the Documentation under the following terms:
The Bing Maps component uses the Bing AJAX Control 7.0 Interactive SDK and is governed by the terms set forth on Microsoft's web site (http://www.microsoft.com/maps/). You must obtain a license for using this service from Microsoft, and must ensure that you comply with the license terms set forth by Microsoft before providing an API key and enabling this component in the Software.
ii. Modifications or Customization
Your License for FotoWeb may enable you to make certain modifications to the Software. Examples of such customization are changing the files in the following folders: “Email Templates", “Documents", or “Error Templates".
You may customize the product according to the instructions in the Documentation. You may not alter the functionality or appearance of the product using other methods than those described in the Documentation.
By making such changes, you agree that your product is no longer covered by the Limited Warranty or Technical Support services described later in this EULA.
Changing the colors, fonts, and logos displayed in the product through the Appearances user interface in the product configuration is explicitly not covered by the terms in this section.
Your license for FotoWeb may enable you to access Application Programming Interfaces (APIs) that allow you to customize the product or integrate FotoWeb with third-party products.
The APIs in FotoWeb are delivered “AS-IS", and are not covered by our Limited Warranty or Technical Support Services as described later in this EULA.
You may not use the APIs in FotoWeb to build products or services competing with the offerings of FotoWare, or use the APIs to circumvent the user licensing models in FotoWeb. Each user accessing the API, either directly or indirectly, must be identified to FotoWeb as a unique session (as governed by the 'FWSession' cookie), and you may not proxy requests in order to circumvent any limitations to the number of concurrent sessions set forth by your License.
Only users with a valid license for FotoWeb or another product with a Client Access License may access the APIs directly or indirectly (through a third-party product or service you develop).
F. Index Manager
Index Manager exposes search and data processing capabilities that may only be used by licensed users of Software that includes a Client Access License.
Your License for Index Manager may give you access to certain Application Programming Interfaces (APIs) that allow third-party products to access the services of and/or control the Software, which may only be accessed and used by users that hold a license for one or more Client Products that includes a Client Access License for the Server Products, or by obtaining separate Client Access Licenses for users that access the services through third-party software.
5. LIMITED WARRANTY
FotoWare warrants that the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. Current Documentation can be found on http://www.fotoware.com/Support/Documentation.
FotoWare does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure.
FotoWare's sole liability for any breach of this warranty shall be, in FotoWare's sole discretion: (i) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; (ii) provide repaired or corrected Software and/or documentation; or (iii) if the above remedies are impracticable, to refund the license fee you paid for the Software.
Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software.
Only if you inform FotoWare of your problem with the Software within 90 days of acquiring the Software and provide evidence of the date you purchased a Retail License for the Software will FotoWare be obligated to honor this warranty. FotoWare will use reasonable commercial efforts to repair, replace, advise, or refund pursuant to the foregoing warranty within 90 days of being so notified.
FotoWare also warrants that the media containing the Software, if provided by FotoWare, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software, and will replace defective media or provide online download locations free of charge in this period.
This limited warranty does not apply to the following, which are made available AS-IS and without warranty from FotoWare: (i) patches, (ii) pre-release software, (iii) trial and evaluation software, (iv) not-for-resale copies of the Software, and (v) any software made available by FotoWare for free via web download from a FotoWare website.
A. Limitations of Damages
FotoWare shall not be liable for any indirect, special, incidental or consequential damage (including damage or loss of business, loss of profits, or the like), whether based on breach of contract, tort (including negligence), product liability or otherwise, even if FotoWare or its representatives have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose.
B. Extended Warranty Period
You may enter into a Software Maintenance Agreement with FotoWare that will extend the period of this limited warranty for the validity period of your agreement, and governed by the terms set forth in your agreement.
6. BASIS OF BARGAIN
This is a limited warranty and it is the only warranty made by FotoWare. FotoWare makes no other express warranty and no warranty of noninfringement of third parties' rights. The duration of implied warranties, including without limitation, warranties of merchantability and of fitness for a particular purpose, is limited to the above limited warranty period; some jurisdictions do not allow limitations on how long an implied warranty lasts, so limitations may not apply to you.
A. Modifications or customization of the software
If you make any modifications to the Software or if you violate the terms of this Agreement, then this warranty shall immediately be terminated.
You may not modify, translate, reverse engineer, decompile, disassemble or create derivative works based on the Software.
You may not remove any proprietary notices or labels on the Software, including but not limited to copyright strings or the “Powered by FotoWeb" button.
B. Compliance with the system requirements for the software
This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the software was designed to be used. (Described in the System Requirements section of the Documentation.)
C. Prevention of overuse or license violations
FotoWare may incorporate technology in the Software to monitor and prevent overuse or violation of your License, such as serial numbers, online activation, and online tracking of software use.
You must not remove or circumvent, or attempt removal or circumvention, of any such technical devices which may have been applied to protect the Software in any way and/or to prevent unauthorized use, including but not limited to use of the Software in excess of the agreed number of users or any license period.
In cases where technical limitations are not implemented to govern correct usage according to your License, you are solely responsible for maintaining compliance with the License, and must maintain routines for internal license audits at least yearly.
7. TECHNICAL SUPPORT
Technical support and access to product updates are included with your license according to the terms set forth below.
Retail Licenses includes thirty days of complimentary technical support via email from the day of purchase, via the partner, reseller, or agent that sold the Software to you, or directly from email@example.com in the event that your partner, reseller, or agent can no longer offer this service. FotoWare may in this event, at its own discretion, either 1) respond to your support inquiries directly or 2) appoint a new partner, reseller, or agent that can offer this service.
Retail Licenses includes access to product updates and new versions for a period of 12 months from the day of purchase. You must register your email address, licenses and any Software Maintenance Agreements on http://www.fotoware.com to access updates.
FotoWare warrants that the Software covered by Retail Licenses can be accessed and downloaded from http://www.fotoware.com/Support/ for a period of 24 months after the day of purchase.
You may enter into a Software Maintenance Agreement with FotoWare that will extend your access to Technical Support for the validity period of your agreement, and governed by the terms set forth in your agreement.
8. OPEN SOURCE
The Software may contain Open Source components. A complete list of such components can be found in the About function in the Software, and license terms for each component can be found in the program directory where the Software is installed. If you would like copies of the source code for such components, please write to FotoWare, Holbergsgate 21, 0166 Oslo, Norway and copies of requested components will be provided free of charge, excluding shipping and handling costs.
No FotoWare dealer, agent, or partner is authorized to make any modifications, extensions, or additions to this warranty. Any modifications, extensions, or additions must be explicitly stated in a written contract with FotoWare, and dated on or after the revision date of this EULA.
10. GOVERNING LAW
All contacts made between FotoWare and you and this EULA shall be governed by and interpreted in accordance with Norwegian law.
In case of a dispute between the parties which cannot be solved by negotiations, you hereby submit for the benefit of FotoWare, to the jurisdiction of the Norwegian courts, with the Oslo City Court as due venue. Nevertheless, FotoWare has the right to instigate legal proceedings in the country where you have your place of residence or perform business activities.
If you have questions about this EULA, your licenses, or how to ensure your use of the Software is compliant with the license terms, please contact us by sending an email to firstname.lastname@example.org.