END USER LICENSE AGREEMENT
This copy of Vivid Arts LLC, app and website, (“the App”) and accompanying documentation is licensed and not sold. This App is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Vivid Arts LLC or its subsidiaries, affiliates, and suppliers (collectively “Va”) own intellectual property rights in the App. The Licensee’s (“you” or “your”) license to download, use, copy, or change the App is subject to these rights and to all the terms and conditions of this End User License Agreement (“Agreement”).
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SELECTING THE “ACCEPT” OPTION AND DOWNLOADING THE APP OR BY INSTALLING, USING, OR COPYING THE APP. YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE YOU WILL BE ALLOWED TO DOWNLOAD THE APP. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT “DECLINE” AND YOU MUST NOT INSTALL, USE, OR COPY THE APP.
Subject to the restrictions this License, we grant you a non-exclusive, non-transferable, non-sublicensable, limited license to download, install and use in object code form a single copy of the App on each of your devices (e.g., your mobile phone, PDA, computer). Any attempt to use the App other than as permitted by this License will immediately terminate the license.
Except for the rights explicitly granted in this License, we retain all right, title and interest (including all intellectual property rights) in the App, including the copies of the App on your devices. We may use third-party software that is subject to open source and/or third-party license terms. You are subject to those terms.
You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that we shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
The license granted to you, the end-user for the Licensed Application, is limited to a non-transferable license to use the Licensed Application on any iPhone or iPod touch that the you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
You may not use, copy, or install the App on any system with more than one computer, or permit the use, copying, or installation of the App by more than one user or on more than one computer. If you hold multiple, validly licensed copies, you may not use, copy, or install the App on any system with more than the number of computers permitted by license, or permit the use, copying, or installation by more users, or on more computers than the number permitted by license.
You may not decompile, “reverse-engineer”, disassemble, or otherwise attempt to derive the source code for the App.
You may not use the database portion of the App in connection with any software other than the App.
You agree that the App may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the App.
You may not:
rent, lease, sublicense, sell, assign, loan, or otherwise transfer the App, your copy of the App or any of your rights and obligations under this License;
remove or destroy any copyright notices or other proprietary markings on the App;
reverse engineer, decompile, disassemble, modify or adapt the App, merge the App into another program, or create derivative works of the App;
copy or distribute the App;
use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this License; and
use the App or add any content to the App in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party.
You agree that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the App.
Restrictions on Transfer
Without first obtaining the express written consent of Va, you may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the App.
This License will terminate automatically upon the earlier of: (a) your failure to comply with any term of this License (whether or not we inform you of this termination); or (b) your deleting the App(s) from your devices; or (c) at the end of the Term. In addition, we may terminate this License at any time, for any reason or no reason. If this License terminates, you must stop using the App and delete it from your devices.
You are solely responsible for compliance with any applicable laws and regulations and your own contractual obligations to third parties, including in the use of the App and the Services (as defined below).
Restrictions on Alteration
You may not modify the App or create any derivative work of the App or its accompanying documentation. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the App. You may not reproduce the database portion or create any tables or reports relating to the database portion.
Restrictions on Copying
You may not copy any part of the App except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on storage medium. You may make one archival copy which must be stored on a medium other than a computer hard drive.
Transmission of Data/Updates
Use of an App may involve the transmission of data over the Internet to us and to and from third parties. For the sake of copy protection, a valid activation might be verified automatically by the App from time to time. If you elect to receive automatic updates, we may push updates to your devices.
Services; Third Party Materials.
The App may enable access to our, and third party, services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and that you accept additional terms of service. We make no representation that such Services are appropriate or available for use in any particular location. We, and our licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will we be liable for the removal of or disabling of access to any such Services. We may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. We do not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. No portion of the Services may be reproduced in any form or by any means.
We reserve the right to immediately remove any content from the App, including Third Party Materials and content that you provide, and including any content that is, or alleged to be, or could possibly be, obscene, indecent, scandalous, libelous, slanderous, defamatory or infringing upon the rights, Intellectual Property or otherwise, of any third party, at any time and including upon notice to us of such content by any person, entity or pursuant to any applicable statutes or regulations.
We reserve the right to immediately eject any user from any of our services should such user inject any objectionable content.
You acknowledge and agree that (i) We do not actively monitor the content on the App, and except as otherwise expressly set forth in this Agreement, we assume no liability for the content of the App.
Our services may provide users a way to flag or report objectionable user contributed content and thus
content flagged as objectionable may be removed either temporarily or permanently
users generating such objectionable content may be suspended or ejected
content flagged as objectionable may be automatically removed within 24 hours of receiving such notifications in order to comply with AppStore policy, regardless of whether a review took place
users who falsely flag content as objectionable or otherwise abuse the community moderation functionality may be ejected
there is a zero tolerance policy for objectionable content
We assume no liability for the content of the App or for abuse or hindrance to service caused by this moderation facility.
Maintenance and Support
We are solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in this EULA, or as required under applicable law. We and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
We, not Apple, are responsible for addressing any claims you or any third party may have relating to the Licensed Application or your possession and/or use of this Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Disclaimer of Warranties and Limitation of Liability
UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING BY VA, VA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR IN THE LIMITED WARRANTY DOCUMENTS PROVIDED WITH THE APP.
Va makes no warranty that the App will meet your requirements or operate under your specific conditions of use. Va makes no warranty that operation of the App will be secure, error free, or free from interruption. YOU MUST DETERMINE WHETHER THE APP SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE APP TO MEET YOUR REQUIREMENTS. VA WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL VA, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE APP, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF VA OR ANY OTHER PARTY, EVEN IF VA IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS VA’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
Limitation of Remedies and Damages
Your remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction or replacement of the App. Selection of whether to correct or replace shall be solely at the discretion of Va. Va reserves the right to substitute a functionally equivalent copy of the App as a replacement. If Va is unable to provide a replacement or substitute App or corrections to the App, your sole alternate remedy shall be a refund of the purchase price for the App exclusive of any costs for shipping and handling.
Any claim must be made within the applicable warranty period. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by Va to have been caused by you. All limited warranties on the App are granted only to you and are non-transferable. You agree to indemnify and hold Va harmless from all claims, judgments, liabilities, expenses, or costs arising from your breach of this Agreement and/or acts or omissions.
Governing Law, Jurisdiction and Costs
This Agreement is governed by the laws of Florida, without regard to Florida’s conflict or choice of law provisions.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.