NOTICE TO USER:
PLEASE READ THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH INSTALLATION OF PROPHOTO. BY CLICKING ON THE ACCEPT BUTTON, OPENING THE ZIP FILE, COPYING, INSTALLING OR USING ANY PORTION OF PROPHOTO, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED PROPHOTO ON WHOSE BEHALF IT WAS USED. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE PROPHOTO.
This End-User License Agreement (the “EULA”) is a legal agreement between you (either an individual or an entity) and DownShift, LLC. (“DownShift”) for ProPhoto which includes associated software components, media, printed materials, and “online” or electronic documentation (collectively referred to as “ProPhoto”).
1. GRANT OF LICENSE.
DownShift, LLC. grants you a non-exclusive license to download, install, and use ProPhoto consistent with the express terms and conditions of the EULA. This includes the right to install and use two copies of ProPhoto and to make a reasonable number of copies of ProPhoto for backup and archival purposes.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
(a) Support Services. DownShift may provide you with support services related to ProPhoto (collectively referred to as “Support Services”). Any supplemental software code provided to you as part of the Support Services shall be considered part of ProPhoto and subject to the terms and conditions of this EULA.
(b) Footer credit links. Except as otherwise provided, you shall not remove or alter any footer credit links on your installation or use of ProPhoto. Removal or altering of the footer credit links will void all customer support, future upgrades, and may constitute a material breach of this EULA. Notwithstanding, if you have purchased the non-branded version of ProPhoto, you may remove or alter the footer credit links.
(c) Unauthorized Use. You shall not modify, copy, duplicate, make derivative works, distribute, sell, rent, lease, lend, assign, convey, license, or sublicense ProPhoto or any of its individual files or authorize any portion of ProPhoto to be copied onto another individual or entity computer except as is expressly permitted under this EULA.
(d) Prohibition on Reverse Engineering, Decompilation, and Disassembly. You shall not reverse engineer, decompile, or disassemble ProPhoto, except and only to the extent that such activity is expressly permitted by tutorials and documentation for ProPhoto as found on the website: https://pro.photo.
(e) Prohibited Use. You shall not use ProPhoto for any of the following purposes:
- any use that appeals to the prurient interest (as defined below) and as determined by the DownShift in its sole and complete discretion;
- any use that lacks serious literary, artistic, political, or scientific value as determined by DownShift in its sole and complete discretion; or
- any use that describes sexual conduct in a patently offensive way as determined by the DownShift in its sole and complete discretion.
Prurient interest means a shameful, morbid interest in nudity, sex, or excretion.
(f) Compliance with Applicable Laws. You agree to comply with all applicable laws regarding use of ProPhoto.
3. OTHER LICENSING RIGHTS.
The parties acknowledge that some aspects of source code that is licensed under the GNU General Public License, Version 2 (the “GPL”) has been incorporated into files that are part of ProPhoto. You acknowledge that DownShift has complied in all respects with the terms and conditions of the GPL, including but not limited to providing you with machine/readable source code of ProPhoto. As a condition of your acceptance of the EULA, you further acknowledge: ProPhoto is a separate and independent work from any program governed by the GPL; DownShift has a copyrightable interest in ProPhoto; it is not a derivative work of any program or work under the GPL; and ProPhoto is not otherwise subject to the terms and conditions of the GPL.
DownShift may terminate this EULA at its sole discretion if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of ProPhoto in your possession.
5. INTELLECTUAL PROPERTY.
All title, including but not limited to copyrights, in and to ProPhoto and any copies thereof are owned by DownShift. All title and intellectual property rights in and to the content which may be accessed through use of ProPhoto is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. Except as otherwise provided, this EULA grants you no rights to use such content. All rights not expressly granted are reserved by DownShift, LLC.
6. NO WARRANTIES.
DOWNSHIFT EXPRESSLY DISCLAIMS ANY WARRANTIES FOR PROPHOTO. PROPHOTO IS PROVIDED AS IS, WITHOUT FAULTS OF ANY KIND, WITHOUT ANY EXPRESS OR IMPLIED WARRANTY THAT EXIST BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGMENT OR THIRD PARTY RIGHTS, INTEGRAION, MERCHANTIBILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS OR A PARTICULAR PURPOSE. DOWNSHIFT DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN PROPHOTO. DOWNSHIFT, INC. FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO YOU OR TO ANY THIRD PARTY. THE PROVISIONS OF THIS PARAGRAPH WILL SURVIVE THE TERMINATION OF THE EULA, BUT THIS WILL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE PROPHOTO AFTER TERMINATION OF THE EULA.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL DOWNSHIFT BE LIABLE FOR ANY LOSS, CLAIM, DAMAGES, OR COST (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR LOST INFORMATION) ARISING OUT OR RELATED TO OF THE USE OF OR INABILITY TO USE PROPHOTO, EVEN IF DOWNSHIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DOWNSHIFT BE LIABLE FOR LOSS OF DATA OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFIT), OR OTHER DAMAGES BASED IN CONTRACT, TORT OR OTHERWISE. DOWNSHIFT SHALL HAVE NO LIABILITY WITH RESPECT TO THE CONTENT OF PROPHOTO OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ERRORS OR OMISSIONS CONTAINED THEREIN, LIBEL, INFRINGEMENTS OF RIGHTS OF PUBLICITY, PRIVACY, TRADEMARK RIGHTS, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, MORAL RIGHTS OR THE DISCLOSURE OF CONFIDENTIAL INFORMATION. THE FOREGOING EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. DOWNSHIFT’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE EULA WILL BE LIMITED TO THE AMOUNT PAID FOR PROPHOTO, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OF THIS EULA.
You agree to indemnify, hold harmless and defend DownShift, LLC., its shareholders, directors, officers, employees, and agents from and against any loss, damage, claims or lawsuits, including reasonable attorneys fees and costs that arise or result from the use of ProPhoto.
The EULA represents the entire agreement between the parties and it supersedes any prior or contemporaneous representation, proposal, understanding, or agreement. This EULA is governed by and construed in accordance with the substantive law in force in the State of Michigan regardless of where ProPhoto is purchased, downloaded, or installed. In resolving any dispute relating or arising out of this EULA, you consent to exclusive jurisdiction in the Federal Court for the Western District of Michigan. This EULA will not be governed by the conflict of law rules of any jurisdiction in the United Nation Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of this Agreement which will remain valid and enforceable according to its terms and conditions. This EULA may only be modified in a writing signed by an authorized officer of DownShift. You agree that ProPhoto will not be shipped, transferred or exported into another country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if ProPhoto is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, any embargoed or otherwise restricted nation and that you are not otherwise prohibited under the Export Laws from receiving ProPhoto. All rights to use ProPhoto are granted on condition that such rights are forfeited if you fail to comply with the terms of this EULA.