Software License Agreement
Important – This is a Legal Contract. Please Read Carefully: By using the PhotoCake® Online System, including computer software or other media (whether installed on your computer or accessed via the internet or similar ASP platform, the “software”)or printed or electronic materials, including ‘on-line’ or electronic documentation (“documentation”), you agree to the terms of this contract between you, the user, and DecoPac, Inc. If you do not agree with the terms and conditions outlined below, either return the product, along with the rest of the packaging, to the location from which you obtained it (if physically in your possession) or cancel your account or otherwise cease using it on whatever remote or virtual platform on which you’ve accessed it (for example, on an ASP platform). In the event of a cancellation, you will be charged proportionally for a period of time you have accessed PhotoCake Online prior to the cancellation. The software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Regardless how you have accessed the software, the software is licensed to you – it is not sold to you and you may only use it during the term of the license on the terms and conditions of this Software License Agreement. This is a legally binding agreement between you and DecoPac, Inc. Read it carefully and make sure you understand it before you proceed with using the PhotoCake® Online System.
License Grant. Subject to the terms of this Agreement, we (DecoPac, Inc.) grant to you (the “User”) a nonexclusive, nontransferable license to access and use the PhotoCake® Online System and software for your internal purposes only, without the right to sublicense such rights, provided User unconditionally agrees to access and use the software in accordance with this Agreement. Any updates, modifications, enhancements or new versions of the software provided or made available to User shall be considered software subject to this Agreement. We may at any time and for any reason without liability to you or any third party elect to modify, discontinue, delete or restrict any aspect or feature of the software without notice.
Use of Software. The User is licensed to use the PhotoCake® Online System only. User may permanently transfer all of its rights in this license, provided User retains no copies of the software (including all components, media, printed materials, upgrades, and this agreement), and the recipient agrees to the terms of this agreement. Except as otherwise expressly provided in this Agreement, User agrees to (a) only use the software in the manner, and for the purposes, expressly specified in this Agreement; (b) not analyze or otherwise examine the software for the purpose of reverse engineering (except to the extent this restriction is expressly prohibited by applicable law); (c) not delete or in any manner alter any notices, disclaimers or other legends contained in the Software or appearing on any images or other materials obtained by User through use of the software ("Notices"); (d) reproduce and display all Notices on all copies User makes, in accordance with this Agreement; (e) not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access and/or use of the software; (f) not copy, reproduce, republish, upload, post, transmit, or distribute the software, or any portion thereof, or facilitate or permit a third party to do so; (g) not use any device or software to interfere or attempt to interfere with the proper operation of the software; and (h) abide by all applicable local, state, national and international laws and regulations. Unless User and DecoPac, Inc. enter into a separate agreement, DecoPac, Inc. will not provide any training or on-site support to User relating to the software.
Proprietary Rights: The software accessed via the PhotoCake® Online System is owned by DecoPac, Inc. Its structure and code are valuable trade secrets of DecoPac, Inc. The software is also protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You should treat the software as any other copyrighted material, such as a book. You may not copy the software or documentation except as set forth in the “Use of Software” above.
Intellectual Properties: In accordance with 35 U.S.C. § 287(a), the reader is hereby placed on notice of the rights of DecoPac, Inc. in the U.S. patents that are listed on this site and associated with the specified DecoPac, Inc. products. Further, the reader is placed on notice of the provisional rights of DecoPac, Inc. in U.S. patent applications, which are both pending and published, and which are listed on this site.
To view a list of DecoPac’s patents and pending, published patent applications click here.
Additional patent applications may be pending and this list may be updated from time-to-time as additional patent applications are published.
User Representations: User represents and warrants to DecoPac, Inc. that this Agreement shall be binding on User, and, unless User is an individual, User represents and warrants that this Agreement was executed by an authorized signatory of User with the authority to enter into binding agreements on behalf of User. User further represents and warrants that it will not take any action that constitutes the infringement, misappropriation or unauthorized use of the copyrighted material or intellectual property of any third party. User agrees to defend, indemnify and hold DecoPac, Inc. and each DecoPac Party, as well as the directors, officers, agents, and employees of DecoPac, Inc. and each DecoPac Party, harmless from any losses, liabilities, damages, actions, claims or expenses (including attorneys' fees and court costs) arising or resulting from User's breach of any term of this Agreement or caused by acts or omissions performed by User or under User's Password.
Credits. User may be able to purchase “credits” for future use in connection with the PhotoCake® Online System. All credit purchases are final and non-refundable. In additional, credits are personal to the subscriber who purchased them and may not be transferred between or among accounts. This means, to the maximum extent permitted by applicable law, if User’s subscription is terminated or expires, User may forfeit any unused credits in its account. DecoPac, Inc. will permit User to reactivate their account during a grace period of thirty (30) days following such termination or expiration, and such reactivation will restore all credits applicable to such subscriber account. To the extent that applicable law does not permit the forfeiture of purchased credits upon termination or expiration of User’s account, User shall have the right to use or redeem such credits only to the extent and for the time period required by applicable law.
DISCLAIMER: EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE
SOFTWARE IS PROVIDED "AS-IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DECOPAC, INC. AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS AND AGENTS (“DECOPAC PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY; (B) NEITHER DECOPAC, INC. NOR ANY DECOPAC PARTY WARRANTS THAT THE SOFTWARE IS OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF DECOPAC, INC.’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) EACH OF DECOPAC, INC. AND THE DECOPAC PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, USEFULNESS, OR EFFECTIVENESS OF THE INFORMATION, IMAGES AND DATA OBTAINED, GENERATED OR OTHERWISE RECEIVED BY USER FROM ACCESSING AND/OR USING THE SOFTWARE OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND (E) USE OF THE SOFTWARE IS ENTIRELY AT USER'S OWN RISK AND DECOPAC, INC. AND EACH OF DECOPAC PARTIES SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
User understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software, including, the public telephone, computer networks and the Internet or to transmit information, whether or not supplied by User or DecoPac, Inc., can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the software. DecoPac, Inc. and the DecoPac Parties are not in any way responsible for any such interference with or prevention of User's access and/or use of the software.
LIMITATION ON LIABILITY: THE TOTAL LIABILITY OF DECOPAC, INC. AND THE DECOPAC PARTIES IN THE AGGREGATE TO USER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM USER UNDER THIS AGREEMENT. DECOPAC, INC. AND THE DECOPAC PARTIES SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, WHETHER OR NOT DECOPAC, INC. AND THE DECOPAC PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). DECOPAC, INC. AND THE DECOPAC PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE, WHETHER OR NOT DECOPAC, INC. AND THE DECOPAC PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DECOPAC, INC. AND USER, AND THE PRICING FOR THE LICENSE REFLECTS SUCH LIMITATIONS. IF USER IS NOT SATISFIED WITH THE SOFTWARE, THE ENTIRE LIABILITY OF DECOPAC, INC. AND THE DECOPAC PARTIES, AND USER'S EXCLUSIVE REMEDY, SHALL BE FOR USER TO IMMEDIATELY STOP ACCESSING AND USING THE SOFTWARE AND CONTACTING DECOPAC, INC. WITHIN 60 DAYS OF AGREEING TO THIS AGREEMENT AND REQUESTING A PRO RATA REFUND OF THE FEES PAID BY USER TO DECOPAC, INC. UNDER THIS AGREEMENT, ASSUMING A ONE YEAR TERM OF THIS AGREEMENT.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.
System Requirements. User is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges) not owned or operated by or on behalf of DecoPac, Inc., that allow User to access and use the software, and for all expenses relating thereto (plus any applicable taxes). User agrees to access and use the software on systems that meet the minimum requirements set forth in the Documentation, and in accordance with any and all operating instructions or procedures that may be issued by DecoPac, Inc., and amended by DecoPac, Inc. from time to time. DecoPac, Inc. and the DecoPac Parties do not make any commitments with respect to use or performance of the software with outdated, obsolete or unsupported software or equipment.
Governing Law: This agreement will be governed by the laws in force in the State of Minnesota. If any part of this agreement is found to be unenforceable, it will not affect the validity of the balance of the agreement. You agree not to ship, transport, or export the software to any other country or use in any manner prohibited by the United States Export Administrations Act or any other export laws, restrictions, or regulations. This agreement will terminate immediately upon failure to comply with its terms.
Questions about this agreement should be directed to:
John Anderson, Executive Vice President
3500 Thurston Avenue
Anoka, Minnesota 55303
Remember that existing artwork and images that you use with this product may be protected under copyright law. Unauthorized use of such artwork or images could be a violation of the rights of the artist or copyright holder. Please be sure to obtain any permission(s) required from the artist(s) or copyright holder(s) before scanning or reproducing a copyrighted work. By using the PhotoCake® Online System, you agree to not violate copyright and trademark laws by scanning, reproducing, or offering for sale without permission any property which is copyright or trademark protected.