End User Sub-Licence for Photojunction Software

Queensberry Limited

End User Sub-Licence for Photojunction Software (November 2011)

THIS IS AN AGREEMENT BETWEEN 

Queensberry Limited ("QL"), a company incorporated in New Zealand under the Companies Act 1993 (New Zealand) whose registered address is at Parnell House, 470 Parnell Road, Parnell, Auckland, New Zealand, and

You, the person or entity who has registered an End User Sub-Licence to use the Software (“End User”).

BACKGROUND

QL is a licensee of the Software pursuant to a Software Licensing Agreement from the Licensor, which gives the QL the right to sub-licence End-Users to use the Software and to appoint suppliers and sub-distributors to distribute the Software to End Users.

The End User wishes to use the Software on the terms set out in this licence.

DEFINITIONS

“Associated Documentation” means operating manuals and other printed and/or electronic materials including user’s manuals, tutorials, Modification manuals, drawings and software listing which are designed to assist or supplement the understanding or application of the Software;

“Client Files” means data files created by End Users using the Software in the course of designing, specifying, creating and/or ordering Output Products;

“Commencement Date” means the date on which the End User accepts the terms and conditions of this licence pursuant to clause 2.1;

“Intellectual Property” means all statutory, common law and proprietary rights, including, but not limited to patents, designs, trade marks, copyright works, layout designs, know-how and confidential information, whether registered or unregistered (including applications for such rights) as may exist anywhere in the world at any time;

“Licensor” means Queensberry Direct Marketing Limited;

“Modifications” means any modification, enhancement, development, improvement, or variation to any version of the Software or where, applicable to any aspect of the Websites;

“Output Products” means products and/or services that are or can be designed, specified, created and/or ordered using the Software whether from a Supplier or otherwise, including, without limitation, albums, wall portraits, video  and image files;

“Photojunction Store” (“the Store”) means the service provided by QL that enables End Users to use the Software to purchase and/or download and install electronic and other products and services created by QL and/or third party vendors;

“Photojunction Store Vendors” (“Store Vendors”) means any entity excluding QL offering and/or selling electronic and/or other products and services through the Photojunction Store. Any End User can act as a Store Vendor subject to the terms of this Agreement;

“Software” means the Photojunction software and includes any upgrades, resource files, modified versions, updates, additions and copies of the Software licensed to QL by the Licensor, and where required by the Licensor, includes the Associated Documentation;

“Supplier” means any entity manufacturing and/or distributing products and/or services that are designed, specified, created and/or ordered with the aid of Supplier Resources;

 “Supplier Resources” means the data and image files supplied by the Supplier or created by an End User or any third party to be configured in the Software to enable End Users to use the Software to design, specify, create and/or order Output Products;

“Trade Mark” means the PHOTOJUNCTION word mark registered in classes 9, 38 and 42 in the name of the Licensor; and

“Websites” means the URLs www.photojunction.com and www.queensberry.com, including their contents, look and feel and any information related thereto.

AGREEMENT

1. Licence

1.1 QL grants the End User the non-exclusive, non-transferable right to install one copy of the Software on one of the End User’s computers and use those copies of the Software for its own personal use only, subject to the terms of this licence.

2. Term, Changes Renewal and Termination

2.1 Subject to provisions of this clause 2, the initial term of this licence will be twelve (12) months from the date on which the End User accepts the terms and conditions of this End User Licence. This licence will terminate unless the End User renews the licence as per clause 2.3.

2.2 QL reserves the right at any time to update, revise and otherwise modify the terms of this Agreement. Such changes will be effective immediately and your continued use of the Software will be dependent on your Acceptance of those terms by clicking on the Agree button when you next run the Software.

2.3 This licence is renewable on the terms set out in this licence (and as amended from time to time) for further successive periods of twelve (12) months each, from the date of each successive registration, provided the End User re-registers the software annually by following the re-registration procedures initiated by the Software.

2.4 The End User may terminate the licence at any time by destroying the Software together with any copies thereof in any form.

2.5 QL may terminate this licence on 1 months’ prior written notice or immediately, without notice if the End User commits a material breach of this licence, which remains unremedied for 14 days from the date on which the End User was notified of its obligation to remedy the breach.

2.6 Upon termination of this licence, the End User will:

(a) immediately cease to use the Software and any Intellectual Property of the Licensor;

(b) within 7 days after the date of such termination destroy or permanently delete from any medium on which they are stored, all originals and copies of the Software and/or any other thing provided by QL to the End User under this licence, which are in the possession and/or control of the End User.

3. Licence Charges

3.1 Notwithstanding that the use of the Software will be free of charge, QL may charge the End User for any additional services requested by the End User, including, for example, provision of support services or delivery of the Software to the End User in the form of a compact disc or digital video disk.

3.2 QL may from time to time add optional functional modules ("plug-ins") to the Software and if the End User elects to activate and use those optional features, QL will charge the End User additional licensing fees for the use of the same, as set out on the Websites.

3.3 QL will host an internet-based discussion group through which the End User may access technical support in relation to the Software, free of charge. However, QL may at its sole discretion charge the End User its current rates, as set out on the Websites, for any individual technical support requested by the End User from time to time.

3.4 QL will be under no obligation to further develop the Software, or to support it other than through the internet-based discussion group, which will be available to the End User during the currency of this licence.

4. Permissible and Prohibited Uses of the Software

4.1 The End User may: 

(a) install the Software on specific machines on hard discs or other storage devices in accordance with the terms of clause 1;

(b) use the Software on those specific machines and solely for the End User’s own personal use; and

(c) copy the Software into any machine for the purpose of being used by the End User, either:

(i) instead of the original copy, in order to preserve the original for use if the copy is lost, destroyed or is rendered unusable; or

(ii) if the original copy is lost, destroyed or rendered unusable.

4.2 The End User may not:

(a) use, copy, reproduce, translate, adapt, vary or modify, disclose the Software in whole or in part, (except for one back up copy for archival purposes only), without QL’s prior written consent;

(b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software;

(c) rent, sub-lease, loan, transfer, provide or otherwise make available the Software (in whole or in part) in any form to any person other than the End User’s employees engaged in the operation of the Software in the ordinary course of the End User’s business, in respect of whom the End User agrees to procure appropriate confidentiality undertakings from in respect of the Software;

(d) refuse to replace the current version of the Software with any enhanced Software should such be issued by QL, immediately upon its receipt;

(e) allow any person to use the Software who is not an End User, other than as set out in this licence, nor permit any person to examine, repair or in any way alter the Software;

(f) use, deal in or reproduce the Software in any way inconsistent with this licence and applicable law;

(g) alter, remove or obscure any proprietary or copyright notice on or in the Software or directly or indirectly challenge or contest the validity of or the Licensor’s ownership of the Trade Mark, and/or interfere or otherwise disrupt the use of the Trade Mark by the Licensor and/or any parties authorised by the Licensor;

(h) load the Software on to any network for the purpose of distribution to other computers without a separate licence for each other computer in accordance with the terms of clause 1;

(i) export the Software from any jurisdiction in whole or in part without any relevant government licence or permission; or

(j) do any act, matter or thing which if done by QL would constitute a breach of QL’s obligations to the Licensor.

5. Photojunction Store

5.1 All Store Vendors and purchasers from the Store must have a valid and current licence to use the Photojunction software and a Photojunction acount with full name and contact details including valid and up to date telephone, postal, email and physical residential or commercial addresses.

5.2 Store Vendors must have a current Paypal Account (https://www.paypal.com/) to receive payments as per clause 5.12.

5.3 All transactions in the Store are denominated in United States Dollars (USD). Store Vendors may set and change prices at any time and can at their sole discretion offer products and services free of charge.

5.4 All prices are quoted in the Store on a TAX-INCLUSIVE basis. All prices are INCLUSIVE of Goods and Services Tax (“GST”) to New Zealand-resident purchasers only. Store Vendors resident in New Zealand must state their GST Registration Number and account for sales on the basis that prices are GST-inclusive. Sales to purchasers resident in all other countries are ZERO-RATED for New Zealand GST. Any tax that may be incurred by the Store Vendor in countries other than New Zealand must be accounted for and paid out of the price quoted in the Store. No plusage will added to the listed price to cover tax.

5.5 Payments to Store Vendors for all Store purchases will be made through QL’S Paypal Merchant Account at https://www.paypal.com/.

5.6 QL acts as agent for the Store Vendor in all Store transactions. Store Vendors are solely responsible for the products and services they offer and/or sell through the Store. The End User acknowledges that QL is not responsible for claims made by Store Vendors or for the performance or suitability of third party products and services sold through the Store and that QL makes no warranties or endorsement whatsoever regarding them.

5.7 Insofar as the context allows all Store transactions are subject to the terms of this Agreement, including (without limitation) clauses 4 (Permissible and Prohibited Uses of the Software), 6 (Intellectual Property Rights), 9 (Limited Warranty and Acknowledgments) and 10 (Limitation of Remedies).

5.8 Store Vendors must supply master copies of electronic products such as templates, Photoshop actions, software and eBooks to be hosted on our secure server for so long as the product is offered through the Store. QL will host the electronic products without charge. They must be uploaded using the software tools and methods provided by QL at the Store Vendor’s cost. Where the sale involves physical products (eg books) the products will be shipped directly from the Store Vendor to the purchaser. No sale will occur until QL accepts an order and receives payment from a purchaser.

5.9 By submitting products or services for sale through the Store, Store Vendors authorise and instruct QL to promote the products or services, accept orders, receive payment and issue invoices for them through the Store, to allow purchasers to download electronic products after payment is received and to make appropriate use of their trademarks, imagery or content excerpts in order to promote the products and services in the Store. The Store Vendor agrees that the invoices issued by QL for Store transactions shall be the sole invoices issued with respect to those transactions.

5.10 QL may decline or cease to host or offer for sale or download through the Store any product or service from any Store Vendor at its sole discretion and for any reason including (without limitation) illegality, offensiveness, irrelevance, plagiarism, violation of Intellectual Property rights or lack of sales.

5.11 The Store Vendor states that they are the author of and/or have the right to deal in, offer and sell all products and services listed by them in the Store, that in so doing they they are not infringing the Intellectual Property of any person or entity and that they have authority to use any images that may be incorporated therein, including the assent of any persons that may appear in such images. The Store Vendor agrees to indemnify QL from any liabilities or costs that we may incur as a result of claims to the contrary.

5.12 Store Credits: Store Credits are accrued through the sale of products or services in the Store. Store Credits are denominated in United States Dollars (USD). Subject to a minimum qualifying balance of USD 50.00 QL will pay out the cash value of Store Credits no later than 45 days after the end of the month in which they were accrued. Such payments will be made by crediting the Store Vendor’s Paypal Account. Where appropriate conversions from US Dollars will be at the rate applying on the day. Fees may apply. Unredeemed Store Credits will expire two years after the end of the month in which they were accrued.

5.13 Purchases from the Store:

(a) QL will issue a New Zealand Tax Invoice in respect of every purchase from the Store. Payment in full must be received before delivery of the goods or services.

(b) Purchasers must declare their country of residence and provide their full name and address when making purchases.

(c) Purchasers must account for purchases from the Store and pay any taxes incurred in their country of residence.

5.14 Sales to the Store:

(a) QL will deduct 30% commission from the proceeds of all Store transactions.

(b) In accordance with sec. 5.12 QL will accrue the nett proceeds of each transaction as Store Credits to the Store Vendor’s account, calculated as the value of the Tax Invoice in USD less commission as per sec. 5.14 (a) and any adjustments (eg refunds) that may apply.

(c) Store Vendors must account for sales through the Store and account for and pay any taxes of any kind that may be incurred as a result of Store sales in their country of residence.

5.15 Unless expressly stated to the contrary all software products, templates, actions etc made available through the Store are licensed, not sold, to the End User and the terms of Clause 4 (Permissible and Prohibited Uses of the Software) apply.

5.16 Photojunction Templates sold through the Store are subject to restrictions that prevent them being shared and/or used except on computers associated with the purchaser’s Photojunction account. You accept the terms of such restrictions and undertake not to interfere with or circumvent them.

5.17 You acknowledge that products and services purchased from the Store may be compromised or rendered unusable by changes to any underlying technology that they may depend on, eg (without limitation) hardware, operating systems, software (including the Photojunction software) or internet services and that QL shall have no liability to you in such cases.

5.18 By ordering products and services from the Store (whether purchased or free) you give us permission to collect information about your orders using the Software and to transmit it to QL for ranking and accounting purposes. Except for the purposes of maintaining and operating your Photojunction account all information will be stored and used anonymously.

5.19 QL offers products and services through the Store on an as-is basis without warranty (Clause 9.3). Refunds are not available except in the event of non-delivery.

5.20 QL will take all reasonable steps to maintain the security of your account and credit card information but you acknowledge that you are solely responsible for the security of your account information and agree not to reveal it to any third party.

5.21 QL reserves the right to modify, suspend or discontinue the Store at any time and will not be liable to you or any third party if it does so.

6. Intellectual Property rights

6.1 The End User acknowledges that any and all Intellectual Property used or embodied in or in connection with the Software and the Websites are and will remain the sole property of the Licensor. The End User acknowledges that it will not obtain any rights in respect of that Intellectual Property, other than as expressly set out in this licence.

6.2 The End User and QL acknowledge that this Agreement, use of the Software and/or products or services bought through the Photojunction Store and/or creation or modification of Supplier Resources do not confer rights regarding (without limitation) any products, product specifications, data, documentation, Supplier Resources, trademarks, trade names, product names or logos that may be the Intellectual Property of any Supplier.

6.3 The End User agrees not to infringe any Intellectual Property belonging to or licensed to the Licensor and to promptly notify the Licensor of any claim by any third party that the use of the Software infringes any rights of any other person, which may come to the End User’s notice. The End User will, at the request and expense of the Licensor, do all such things as may be reasonably required to assist the Licensor in taking or resisting any proceedings in relation to any such infringement or claim.

6.4 The End User will not make Modification to the Software, but where the End User does make any Modification, the End User agrees that all Intellectual Property rights in the Modifications will absolutely and automatically vest in the Licensor.

6.5 The End User hereby transfers, assigns and waives any right, title or interest it may have in those Modifications and will do such acts and execute such documents as the Licensor may reasonably request or as are necessary to give effect to clause 6.4.

6.6 The End User may only use the Trade Mark to identify printed output produced by the Software, provided such use is at all times in a manner and format reasonably approved by QL and is accompanied by an acknowledgment that the Trade Mark is the registered trade mark of the Licensor.

6.7 Client Files created by End Users using the Software shall belong to and remain the property of QL and the End User will not use or attempt to use Client Files with any other software application.  QL reserves the right to encrypt the data in Client Files and to charge a fee for decrypting such data.

6.8 The End User may only use the Software to display, edit or reproduce images or other materials for which the User owns the copyright or is authorised or legally permitted to use display, edit or reproduce.

7. Confidential Information

7.1 All information, data, drawings, specifications, documentation, software listings, source or object codes which QL may have disclosed or may from time to time disclose or give to the End User relating to the Software, are proprietary, secret and confidential to QL.

7.2 The End User agrees with QL that the End User will use such material solely in accordance with the provisions of this licence and that the End User will not at any time during or after the expiry or termination of this licence, use, disclose or distribute (or permit to be disclosed or distributed) those materials to any third party (whether directly or indirectly).

8. Indemnity

8.1 The End User will indemnify and keep indemnified QL (and each of its related companies, including the Licensor) from and against all actions, claims, expenses, losses, liabilities and proceedings whatsoever incurred or suffered by any of them which arise from any breach by the End User of the provisions of this licence including, without limitation, any infringement of Intellectual Property by the End User or its customers arising from the use of the Software and/or Supplier Resources and/or any products and services purchased through the Photojunction Store.

8.2 The End User acknowledges that in the event of any alleged breach of the terms of this licence by the End User, QL (and each of its related companies) will be entitled to seek equitable relief, in addition to damages.  The End User agree that in any such proceedings, the End User will not claim that the breach is one which may not or ought not be the subject of equitable relief.

8.3 The obligations contained in this clause 8 will continue to apply without limit in point of time and will not merge on, or be extinguished by, the termination of this licence, or by any other fact or circumstance, unless QL expressly agrees.

9. Limited Warranty and Acknowledgments. 

9.1 The Software is provided "as is" without warranty of any kind, either express or implied, including but not limited to, the implied warranties of merchantability, quality and fitness for a particular purpose. QL does not warrant that the functions contained in the Software will meet any requirements or that the operation of the Software will be uninterrupted or error free. The entire risk as to the quality and performance of the Software is with the End User and QL is under no obligation to undertake any servicing, repair, or correction of the Software.

9.2 The End User acknowledges that the Software may contain bugs, errors and other problems that could cause system failures which QL will not be liable to remedy. QL disclaims any warranty or liability obligations to the End User of any kind in respect of the Software, and its installation and use.

9.3 QL DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE AND/OR THE SUPPLIER RESOURCES AND/OR ANY PRODUCTS AND SERVICES PURCHASED THROUGH THE PHOTOJUNCTION STORE.

9.4 QL MAKES NO WARRANTIES OR UNDERTAKINGS (EXPRESSED OR IMPLIED) IN RESPECT OF THE SOFTWARE INCLUDING, WITHOUT LIMITATION, AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT WILL QL BE LIABLE FOR ANY DAMAGE CAUSED BY OR ALLEGED TO HAVE BEEN CAUSED BY THE FUNCTIONING OF THE SOFTWARE OR INFRINGEMENT OF THIRD PARTY RIGHTS, INCLUDING WITHOUT LIMITATION LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF AN QL REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.

9.5 The End User acknowledges that QL will not be liable to the End User for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this licence, the Software its use or other application and/or the Supplier Resources and/or any products or services purchased through the Photojunction Store. In particular, the End User agrees that QL will not be liable for any consequential loss or damage which may arise in respect of the Software, its use, or in respect of any other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings.

9.6 The exclusions of liability referred to in clause 9.5 apply to liability in contract or in tort (negligence) and any other principle of legal liability.  In the event that any limitation or provision contained in this licence is held to be invalid for any reason and QL becomes liable for loss or damage that might otherwise have been excluded, it is agreed that such liability will be limited in the manner specified in clause 10.3 of this licence.

9.7 The foregoing does not affect or prejudice the End User’s statutory rights. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to the End User.

9.8 The End User acknowledges that QL is under no obligation to perform or supply any upgrades or enhancements to the Software, or to service or support it, except in the case of support to the extent stipulated in clause 3.3 above.

10. Limitation of Remedies

10.1 The End User acknowledges that the End User will utilise the Software for the purposes of a business and the End User agrees the Consumer Guarantees Act 1993 has no application to the contract created by this licence.  Where the End User becomes a "supplier" within the meaning of the Consumer Guarantees Act 1993 ("the Act"), the End User agrees to indemnify QL against all liabilities, costs, claims and expenses of whatever nature and whether or not under the Act, in respect of claims by or through parties to whom the End User supplies goods or services to.

10.2 To the maximum extent permitted by law, where any right, duty or liability would arise under this licence or where any conditional warranty would otherwise be implied into this contract by implication of law, or under any statute, is hereby negatived and excluded from this licence.

10.3 To the maximum extent permitted by law, QL’s entire liability to the End User under any heading is limited to the sum of ten New Zealand dollars ($10.00).

11. General Provisions

11.1 The laws in force in New Zealand will govern this licence. This licence will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

11.2 If any part of this licence is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which will remain valid and enforceable according to its terms.

11.3  If the End User is located within the United States of America, the End User agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.

11.4 Termination of this licence for any reason will not affect the End User’s liability to continue to observe and perform those provisions of this licence which are intended to survive termination, including (without limitation) clauses 3, 5, 8, 9, 10 and 11 of this licence.

11.5 This licence may only be modified in writing signed by an authorised officer of QL.

11.6 This is the entire agreement between QL and the End User relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.

11.6 Failure or delay by QL in enforcing any right or provision of the licence is not to be deemed waiver of such provision or right with respect to the breach.

11.7 The End User must not assign or attempt to assign or otherwise transfer any right arising out of this licence, without the prior written consent of QL, such consent to be at the sole discretion of QL.

11.8 QL may assign or otherwise transfer any right arising out of this licence without any notice to the End User.

12. Future Reference Detail

12.1 For future reference, a copy of this End User Licence Agreement will be accessible after the End User installs the Software.

12.2 If the End User has any questions regarding this licence or if the End User wish to request any information from QL, please contact: Software Support, Queensberry Limited, PO Box 20-314, Glen Eden, Auckland, New Zealand.