DREAMDRAPER® ONLINE ACCESS TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. TOGETHER WITH YOUR USERNAME AND PASSWORD, THEY CONSTITUTE A LEGALLY ENFORCEABLE CONTRACT (“THE CONTRACT”) BETWEEN YOU AND EVAN MARSH DESIGNS, INC. (“EMD”). BY CLICKING THE “I ACCEPT THIS AGREEMENT” CHECKBOX AND SUBMITTING THIS FORM, YOU ARE AGREEING TO BE BOUND BY ALL OF THE PROVISIONS AND CONDITIONS OF THE CONTRACT.
- General You have purchased a subscription to the DreamDraper Online Premium design software and are agreeing to the applicable annual or monthly payment terms. In accordance with the provisions, and subject to the conditions of the Contract, EMD shall provide to you personal, limited, revocable, non-transferable and non-exclusive online access to use EMD’s DreamDraper® software for the purposes specified below. The EMD software (the “Software”) consists of the purchased DreamDraper® digital product, source codes, designs, design elements, images, photographs, animation, video, audio, text, documentation, interfaces, content and related printed materials, whether contained on hard drives, disks, in any other media or in any other form. The Software is not sold or assigned to you, and no proprietary interest in the Software is granted to you. You are to be provided online access only, for a specified time period and for limited uses only. EMD retains ownership of the Software and reserves all rights in and to the Software. The provisions and conditions of the Contract will govern any software upgrades that replace or supplement the original EMD software product, unless such upgrade is accompanied by a license or separate access contract in which case the provisions of that license or contract shall govern.
- Single Use; Restrictions
A. You may use and run the EMD Software for the sole purposes of the preparation by you of window treatment designs, room elevations and space plan renderings to facilitate the sale by you of window treatments or furnishings to an ultimate retail purchaser.
B. You may not, and you agree not to enable others to, (i) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify or create derivative works of the designs, design elements, images, photographs, animations or video included in the Software, or of any services provided by the Software, or any part thereof, or (ii) sell or publish in any media window treatment designs, room elevations, space plan renderings or any combination or assemblage of designs, design elements, images, photographs, animation, video, audio, text, documentation, interfaces or content created, prepared or assembled through use of the Software. Neither the sale of window treatments or furnishings nor the delivery of any window treatment designs, room elevations or space plan renderings to a purchaser of window treatments or furnishings shall convey to the purchaser, to you or to any other person any proprietary or other right or interest in the Software or any part of the Software, in any services provided by the Software, or in any window treatment designs, room elevations or space plan renderings prepared by you or others.
C. You agree to use the Software in compliance with all applicable laws. You may not use, export or re-export the Software except as authorized by United States law. You agree that you are not located in any U. S. embargoed country and that you are not on the U. S. Treasury’s list of Specially Designated Nationals or the U. S. Commerce Department’s Denied Person’s List or Entity List.
D. You shall indemnify, defend and hold harmless EMD and its officers, affiliates, licensors, licensees, contractors and agents from all damages, losses and expenses arising directly or indirectly from your acts or omissions in accessing or using the Software.
E. EMD may have provided as part of the Software, and may provide as an upgrade, update or supplement to the Software, access to certain third party software or service as a convenience. EMD has no expressed or implied warranty or obligation to provide any technical or other support for such third-party software or service. Please contact the appropriate software vendor, manufacturer or service provider directly for technical support and customer service related to such third-party software, service or products.
- Copyrights And Trademark You agree that the Software contains proprietary content, information and material that is owned by EMD and EMD’s licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright and trademark, and that you will not use the proprietary content, information or materials in any way whatsoever except for permitted uses or in any manner that is inconsistent with the provisions of this Contract or that infringes any intellectual property rights of a third party or EMD. No portion of the Software may be reproduced, displayed, published or printed in any form or by any means except for the limited uses and purposes specifically authorized by this Contract. You agree not to modify or create derivative works based on the Software, in any manner, and you shall not exploit the Software in any unauthorized manner whatsoever. DreamDraper® is a registered trademark of EMD.
- Transfer You may not rent, lease, lend, sell, distribute, transfer or sublicense access to or use of the Software, or any component of the Software, without the expressed written agreement of EMD.
- Consent To Use Diagnostic Data You agree that EMD and its agents may collect, maintain, process and use diagnostic, technical and related information, including but not limited to information about your computer, system and application software, and peripherals, to facilitate the provision to you of software updates, product support and other services related to the Software, and to verify compliance with the provisions of the Contract. EMD may also use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to our customers.
- Third Party Materials The Software may display, include or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites. You acknowledge and agree that EMD is 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. EMD or its officers, affiliates or representatives do not warrant or endorse and do not assume and will not be responsible to you or to 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 or links to other web sites are provided solely as a convenience to you.
- Termination The Contract is effective until it expires in accordance with its provisions or is terminated. Your rights under the Contract shall terminate automatically or otherwise cease to be effective without notice from EMD if you fail to comply with any provision or condition of the Contract. Upon termination of the Contract, you shall cease immediately all access and use of the Software. Sections 7, 8, 9, 10, and 11 of these terms and conditions shall survive expiration or termination.
- 8. Disclaimer YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY SERVICES PERFORMED BY OR THROUGH THE SOFTWARE (COLLECTIVELY, THE “SERVICES”) ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EMD AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND SERVICES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EMD DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE SOFTWARE OR SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. USE OF THE SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EMD OR EMD’S REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A PURCHASER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL EMD BE LIABLE FOR PERSONAL INJURY, OR FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF EMD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. In no event shall EMD’s total liability to you for all damages (other than as required by applicable law in cases involving personal injury) exceed fifty dollars ($50.00), even if this remedy fails of its essential purpose.
- Controlling Law, Remedies and Severability The Contract shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflict of law principles. You consent to the jurisdiction of the United States District Court for the Eastern District of Pennsylvania. You acknowledge and agree that EMD would be irreparably damaged by your breach of the Contract and that in such event EMD is entitled, without bond, to equitable relief in addition to money damages. If for any reason a court of competent jurisdiction finds any provision of the Contract, or any portion hereof, to be unenforceable, the remainder of the Contract shall continue in full force and effect.
- Complete Agreement The Contract constitutes the entire agreement between you and EMD relating to the access and use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of the Contract will be binding unless in writing and signed by EMD.