End User License Agreement - Fundy Designer

FUNDY DESIGNER

End User License Agreement and Limited Warranty

PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT AND LIMITED WARRANTY  (“AGREEMENT”)

BEFORE INSTALLING OR USING THE FUNDY DESIGNER SOFTWARE (“FUNDY DESIGNER”). BY INSTALLING OR

USING ALL OR ANY PORTION OF FUNDY DESIGNER YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY

ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE LIMITED

WARRANTY  PROVIDED IN THIS AGREEMENT.

ACTIVATION OF FUNDY DESIGNER REQUIRES CONNECTION TO THE INTERNET. CERTAIN FUNCTIONALITY OF

FUNDY DESIGNER MAY ALLOW YOU TO CONNECT TO THE INTERNET AS WELL AS TO OPEN THIRD-PARTY

SOFTWARE. ADDITIONALLY, FUNDY DESIGNER MAY AUTOMATICALLY CONNECT TO THE INTERNET.

License .

If you obtained Fundy Designer from Fundy Software INC, or an authorized dealer, subject to your continuous compliance

with this Agreement, and payment of applicable license fees to Fundy Software, INC. (“Fundy”), Fundy grants to you a nonexclusive,

limited license to download, install, and use Fundy Designer solely in accordance with the terms and conditions

of this Agreement. All rights not expressly granted to you in this Agreement are reserved by Fundy. The terms of this

Agreement apply to any upgrades, updates, supplements, repairs, or replacements, unless such is accompanied by a

separate license, in which case the terms and conditions of that separate license will apply. Any upgrades, updates,

and/or supplements to Fundy Designer are made available, and may be provided, at Fundy’s discretion, with or without

charge.

Fundy Designer is licensed to you only under the terms of this Agreement, and is not sold to you. THIS IS A LICENSE,

NOT A SALES AGREEMENT .

As used in this Agreement, the term Fundy Designer includes all information, content, accompanying documentation,

manuals, tools, and fonts, provided with Fundy Designer, as well as the add-on features (including, Album Builder, Blog

Collage, Image Brander, Gallery Designer) that you purchase with the base software. While the term Fundy Designer

includes add-on features (i.e. Blog Collage, and Image Brander), such add-on features require additional license fees.

Use and Restrictions .

Use Rights . You promise Fundy that you will not use Fundy Designer except on compatible computers and

solely as permitted by this Agreement.

Modified Single-User License . Except as provided below, this is a single-user Agreement, and allows you to

install and activate Fundy Designer for your exclusive use on up to two computers (for example: a computer at

work, a computer at home; or two computers in the same office) as long as you are only one with access to Fundy

Designer on such computer. Notwithstanding the foregoing, you may provide access to Fundy Designer to your

employee or other agent, where you and such person are working in concert in the creation of work product. You

may deactivate Fundy Software from one, or both, of your computers to activate Fundy Designer on different

computers, provided you comply with the foregoing.

Operating Systems . Fundy Designer is available for use on both Mac and Windows operating systems. This

license may be installed on either or both supported operating systems.

Restrictions on Use.  Except as otherwise permitted by this Agreement, you may not: (1) modify, port, translate,

adapt, or create derivative works based on, Fundy Designer; (2) reverse engineer, decompile, disassemble, or

otherwise attempt to discover the source code of Fundy Designer (except and only to the extent that you may be

so permitted under applicable law to achieve interoperability with the Fundy Designer); (3) sublicense, rent,

assign, lease, sell, or otherwise transfer all or any portion of Fundy Designer (except as provided by applicable

law); or (4) remove or alter any of Fundy’s copyright notices or trademarks.

Your Results and Effort . Fundy Designer does not create work product. Fundy Designer is merely a tool that allows you

to create work product. You understand and agree that any and all work product and results from the use of Fundy

Designer may vary, and that performance, accuracy, and/or satisfactory quality are dependent on factors such as your

effort, your experience and knowledge, and other extraneous factors. Check and double-check your work. In no event

will Fundy be responsible, in any manner, for the work product created with the use of Fundy Designer, or any failure of

the work product to conform to your specifications or expectations.

BACK UP ALL IMAGE FILES AND OTHER MEDIA THAT YOU INTEND TO USE WITH FUNDY DESIGNER PRIOR TO

USE WITH FUNDY DESIGNER. Fundy is not responsible for any loss, damage, compromise or corruption to any image

files or other media used in connection with Fundy Designer.

Intellectual Property Rights . Fundy Designer (and any copy of Fundy Designer) is the intellectual property of Fundy.

Fundy and Fundy Designer, Album Builder, Blog Collage, Image Brander, Gallery Designer are trademarks of Fundy. The

source code, architecture, and other parts of Fundy Designer are valuable trade secrets and confidential information of

Fundy. All right, title, and interest to and in the intellectual property rights in any content displayed or accessed by you

through the use of Fundy Designer, that does not belong to Fundy, belongs to the respective intellectual property owner,

and may be subject to the terms of use of such owner. This Agreement does not grant you any right, title, or interest to or

in such intellectual property.

Connection to the Internet; Third-Party Systems, Software, and Services . Fundy Designer may, without notice,

automatically connect to the Internet and to communicate with Fundy’s website for software validation or other purposes

such as checks for updates and new releases of Fundy Designer available for download and installation. Additionally,

Fundy Designer may connect to the Internet upon your request. For example, Fundy Designer allows you to export and

post your created content to the Web.

Fundy Designer references, allows access to, or use of, or integrates certain functionality with, third-party systems,

software, and services only as a convenience to you. To the extent that Fundy Designer contains, or provides access to,

or integrates certain functionality with, any third-party system, software, or service, Fundy Designer is not endorsing, or

making any representations or warranties as to, such system, software, or service. Fundy is not responsible for anything

that such system, software, or service, does or doesn’t do, or promise. Use of such systems, software, and services are

subject to separate terms and conditions provided by the applicable licensors or service providers.

Limited Warranty . The limited warranty in this section (“Limited Warranty”) gives you specific legal rights, however, you

may have other rights that by vary by country, province, and/or state. Except as permitted by law, Fundy does not

exclude or limit other rights you may have. To understand your rights, please consult the laws of your country, province,

and/or state. To the extent permitted by law, this Limited Warranty and the remedies set forth in this section are exclusive

and in lieu of all other warranties, remedies, and conditions, whether oral or written, and whether express, implied, or

statutory.

What is covered by this Limited Warranty?  Fundy warrants – to the original purchaser of a valid license to

Fundy Designer, from Fundy or an authorized dealer, for use according to the terms and conditions of this

Agreement – that Fundy Designer will operate substantially in accordance with the Fundy Designer

documentation when used on recommended and unmodified operating systems and hardware configurations for a

period of ninety (90) days from the date of purchase by the original purchaser (“Warranty Period”). Nonsubstantial

variation of the performance of Fundy Designer from its documentation does not create a right or

remedy for you.

What is not covered by this Limited Warranty?  The Limited Warranty is limited and does not provide any

remedies with respect to: (1) trial versions of Fundy Designer; (2) damage caused by use of Fundy Designer with

a computer other than recommended and unmodified operating systems and hardware configurations; (3)

damage caused by use of Fundy Designer with third-party systems, software, or services; (4) defects or damage

caused by misuse, accident, neglect, abuse, alteration, or modification; and (5) any other issue not expressly

covered. This Limited Warranty extends only to original end-user purchaser and is not assignable or transferable

to any subsequent purchaser or user.

What is Fundy’s obligation in the event of a breach of this Limited Warranty?  If during the Warranty Period

you submit a valid claim to Fundy, your sole and exclusive remedy, and Fundy’s sole and exclusive responsibility,

under this Limited Warranty will be, at Fundy’s option, to provide support with respect to Fundy Designer, to

provide an additional copy of Fundy Designer for your installation and use, or to refund you the license fee you

paid to Fundy Designer, if any, that is subject to the warranty. To obtain warranty service, subject to the foregoing

Limited Warranty, please send written correspondence, together with proof of purchase, to Fundy at the address

specified at the bottom of this Agreement.

THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, HOWEVER YOU MAY HAVE ADDITIONAL

RIGHTS UNDER APPLICABLE LAW, WHICH VARY BY COUNTRY, PROVINCE, AND/OR STATE. EXCEPT AS

PERMITTED BY LAW, FUNDY DOES NOT INTEND TO LIMIT ANY RIGHTS YOU MAY HAVE.

Disclaimer Of Warranties . THE FOREGOING LIMITED WARRANTY AND ANY WARRANTY OR REMEDY THAT

CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, ARE THE ONLY WARRANTIES MADE BY FUNDY

REGARDING FUNDY DESIGNER, AND STATE YOUR SOLE AND EXCLUSIVE REMEDIES FOR A BREACH OF

WARRANTY OR CONDITION. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND ANY WARRANTY OR

REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, FUNDY DESIGNER IS PROVIDED

“AS IS”, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, AND FUNDY DISCLAIMS ALL

REPRESENTATIONS, WARRANTIES, CONDITIONS, AND TERMS, WITH RESPECT TO FUNDY DESIGNER,

WHETHER EXPRESS, IMPLIED, STATUTORY, OR BY COMMON LAW, CUSTOM, USAGE, OR OTHERWISE,

INCLUDING WITHOUT LIMITATION PERFORMANCE, SECURITY, THE WARRANTIES OF MERCHANTABILITY,

FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NONINFRINGEMENT. FUNDY DOES NOT

WARRANT THAT FUNDY DESIGNER WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF FUNDY

DESIGNER WILL BE WITHOUT DELAY, ERROR FREE, OR UNINTERRUPTED, THAT ANY BUGS OR DEFECTS IN

FUNDY DESIGNER WILL BE CORRECTED, THAT FUNDY DESIGNER WILL BE COMPATIBALE WITH YOUR

HARDWARE, OPERATING SYSTEM, OR WITH THIRD-PARTY SYSTEMS, SOFTWARE, OR SERVICES, OR THAT

THE WORK PRODUCT YOU CREATE USING FUNDY SOFTWARE WILL MEET YOUR SPECIFICATIONS OR

EXPECTATIONS. IF FUNDY CANNOT LAWFULLY DISCLAIM SUCH WARRANTIES, THEN TO THE EXTENT

PERMITTED BY LAW, FUNDY LIMITS THE DURATION OF SUCH WARRANTIES TO THE MINIMUM TIME

PERMITTED UNDER SUCH LAW, AND LIMITS THE REMEDIES OF THIS EXPRESS LIMITED WARRANTY TO, AT

FUNDY’S OPTION, THE SUPPORT, REPLACEMENT, OR REFUND DESCRIBED ABOVE. SOME STATES,

COUNTRIES, AND/OR PROVINCES DO NOT ALLOW LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY

OR CONDITION, AND ACCORDINGLY THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Limitation of Liabilities and Remedies .

TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND ANY

WARRANTY OR REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, FUNDY IS NOT

IN ANY EVENT LIABLE OR RESPONSIBLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, COLLATERAL,

EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY NATURE WHATSOEVER, RESULTING FROM

OR ARISING OUT OF ANY BREACH OF THIS AGREEMENT OR WARRANTY OR CONDITION, USE OF FUNDY

DESIGNER, OR UNDER ANY LEGAL THEORY INCLUDING WITHOUT LIMITATION FOR: (i) LOSS OF USE OF FUNDY

DESIGNER OR ANY HARDWARE OR THIRD-PARTY SYSTEM, SOFTWARE, OR SERVICE USED IN CONNECTION

WITH FUNDY DESIGNER; (ii) COST OF ANY REPLACEMENT SOFTWARE; (iii) LOST ACTUAL OR ANTICIPATED

REVENUE, PROFITS, OR SAVINGS, OR LOSS OF BUSINESS OR LOSS OF OPPORTUNITY; (iv) LOSS OF

GOODWILL OR REPUTATION; (v) LOSS OF, DAMAGE TO, COMPROMISE, OR CORRUPTION OF DATA, IMAGE

FILES, OR OTHER FILES OF ANY KIND; (vi) DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL

INJURY OR FAILURE TO MEET ANY DUTY OF CARE; (vii) THIRD-PARTY CLAIMS; (viii) ANY INDIRECT OR

CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED INCLUDING THE RELPACEMENT OF EQUIPMENT

AND PROPERTY; (ix) AND ANY COSTS OF RECOVERING, PROGRAMMING, OR PRODUCING ANY SYSTEM,

SOFTWARE OR DATA USED WITH FUNDY DESIGNER, EVEN IF FUNDY HAS BEEN ADVISED OF THE POSSIBILITY

OF SUCH DAMAGES. In no event will Fundy’s total cumulative liability to you for all damages or loss exceed the retail

price of Fundy Designer paid to Fundy by you, even in the event of a fundamental or material breach or a breach of the

fundamental or material terms of this Agreement. Multiple claims will not expand this limitation. Some states, countries,

and/or provinces do not allow the exclusion or limitation of incidental or consequential damages so the above limitations or

exclusions may not apply to you.

Indemnification . You, at your sole expense, will defend, indemnify and hold Fundy and its directors, officers,

shareholders, employees, consultants, affiliates and agents (collectively, “Indemnitees”) harmless from and against any

and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages,

payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to,

reasonable attorneys’ fees and costs, expert witnesses’ costs and fees, penalties, interest and disbursements) arising

from or relating to any suit, action, or proceeding against any Indemnitees, whether successful or not, caused by, arising

out of, resulting from, attributable to or in any way incidental to your use of Fundy Designer or any breach by you of this

Agreement.

Termination . This Agreement is perpetual unless terminated according to this Agreement. This Agreement will terminate

automatically without notice to you if you fail to comply with any of the terms and conditions of this Agreement. Upon the

termination of this Agreement, you agree to stop all use of Fundy Designer and destroy or return all your copies of the

Fundy Designer software (at Fundy’s direction).

Terms and Conditions; Privacy Policy . Use of Fundy Designer, other services provided by Fundy, or any connection to

Fundy’s website, including by automatic connection to the internet through Fundy Designer, is subject to Fundy’s Terms

and Conditions and Privacy Policy.

Controlling Law . This Agreement will be governed and construed in accordance with the laws of the State of Oregon,

without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this

Agreement, and you submit to the personal jurisdiction of such courts. Notwithstanding the foregoing, if you are a

consumer who uses Fundy Designer solely for personal and non-business purposes, then this Agreement will be

governed and construed in accordance with the laws of the jurisdiction in which you purchased the license to Fundy

Designer. Any arbitration arising out of or related to this Agreement will be conducted in English. If this Agreement is

provided in multiple languages, the English version of this Agreement will be used when interpreting or construing this

Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction, the United Nations

Convention on Contracts for the International Sale of Goods, or the Uniform Computer Information Transactions Act, as

they may be enacted in any jurisdiction, the application of which is expressly excluded.

Waiver and Severability . A waiver of any provision of this Agreement by Fundy will not be a waiver of any other

provision or a waiver of a subsequent breach of the same provision. If a provision of this Agreement is determined to be

unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of

this Agreement will not be impaired.

Complete Agreement . This Agreement contains the entire understanding of the parties regarding Fundy Designer and

supersedes all prior and contemporaneous negotiations and agreements, statements in print or other media concerning

Fundy Designer, and any advertising or marketing of Fundy Designer, whether written or oral, with respect to the subject

matter of this Agreement. This Agreement may be amended only by a written document signed by Fundy.

US Government Users . Fundy Designer is a “Commercial Item(s),” as that term is defined at in 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 or 48 C.F.R.

Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer

Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only

those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights

reserved under the copyright laws of the United States.

If you have any questions or concerns regarding this Agreement, or if you wish to request any information from Fundy,

please contact support through www.fundysoftware.com/support.

Fundy and Fundy Designer, Fundy Direct, Album Builder, Blog Collage, Image Brander, Gallery Designer are trademarks of Fundy.

Fundy Software, Inc.

17000 SE Whitely Way

SUITE 103

Beaverton, OR 97006 USA

+1 503 336-3727