Preclick's Software and Intellectual Property enables users to organize,
print, preserve and share their digital photographs. Upon your purchase,
registration and acceptance as provided below, Preclick Corporation
(Herein known as "Preclick") will provide to the person registering below (the "Client")
access and use of PhotoBack™
(the "Software"), including the Intellectual Property (as defined below)
on the Software, and any services or products offered through the
Software.
Intellectual Property Rights.
All software (including source and object codes), documentation,
visual, oral or other digital material, advice, counseling, information,
data, and all other Intellectual Property of any description available
on the Software, and all world-wide copyrights, trademarks, logos,
service marks, patents, patent registration rights, trade secrets,
know-how and database rights ("Intellectual Property"), and all other
rights in or relating to such materials are owned by Preclick or its
licensors. Except pursuant to the revocable license provided in Section
2, Client shall not acquire any right to use, possess or modify, or to
create derivative works from the Intellectual Property. Inquiries
regarding the Intellectual Property or infringement issues should be
directed to: info@preclick.com.
Preclick welcomes feedback and ideas regarding the Preclick
website (www.preclick.com), it's existing Software, new products, new or
updated processes, new or updated advertising or marketing campaigns, or
new or updated company or product branding. However, please be advised
that such feedback and ideas will not be deemed confidential. By
submitting your feedback and ideas, either physically or electronically,
you grant Preclick the right to use such feedback on an unrestricted
basis and at no cost to Preclick or its users. All material sent,
either physically or electronically, to Preclick will be considered
Preclick property and will not be returned.
Grant of License.
Preclick grants Client a nonexclusive, nontransferable and
revocable license to use and display the Intellectual Property on
computers used by Client for his own personal use, and to copy or
download Intellectual Property onto such computers for such personal
use. Client may only use or access the Software as expressly permitted
in this Agreement and for no other purposes. Without limiting the
foregoing, Client is prohibited from modifying, copying, distributing,
transmitting, displaying, publishing, selling, licensing, creating
derivative works or using any Intellectual Property available on or
through the Software for any purpose outside the scope of his own
personal operations. In addition to copies resident on Client's
computer hard drives used by Client for his own personal operations,
Client may copy the Intellectual Property for archival or back-up
purposes; no other hard copy or electronic duplication, transmission,
redistribution, or publication of any Intellectual Property is
permitted, and Client may not use or include any Intellectual Property
in any other print or electronic publication or service.
Client may not use the Software or the Intellectual Property
for illegal purposes or for the transmission of material that is
unlawful, harassing, libelous, invasive of another's privacy, abusive,
threatening, harmful, vulgar, obscene, tortuous or otherwise
objectionable or to post or transmit non-public information about
companies without the authorization to do so or for the transmission of
junk mail, spam, chain letters, or unsolicited mass distribution of
email or other solicitations. Client is also responsible for obtaining
or providing at his expense all access lines, telephone and computer
equipment (including modem) or other device, necessary to access and/or
use the Software. It is your responsibility, not Preclick's, to ensure
that any material that you copy, use or share using the Preclick
software does not violate any third party's copyright. You are
responsible for getting any necessary permission and paying any
necessary licensing fees for the images or other material you choose to
use. If you violate the copyright laws, there may be fines or criminal
charges brought against you, even if you don't get any commercial
benefit from the illegal copies. You agree to hold Preclick harmless
from your violation of copyright laws by your use of the Preclick
Software.
Client may not alter or remove any trademark, logo, service
mark, copyright or other proprietary notices or legends from any copies
of Intellectual Property. Client may not sublicense, assign or transfer
this license or the Intellectual Property. Client's violation of the
foregoing will be grounds for immediate termination of this license by
Preclick and my result in civil and/or criminal liability. Requests
regarding use of the Intellectual Property for any purpose other than as
permitted under this Agreement should be directed to Preclick
Corporation, 140 Ocean Blvd., Atlantic Highlands, NJ, 07716. Telephone
732-291-7269.
Each software activation code is permitted to be used one
time. Sharing this activation code with others is a violation of your
Preclick Terms of Service. Willfully allowing multiple installations
using this code is considered software piracy and will result in the
cancellation of your activation code. Client agrees immediately to
notify Preclick if Client becomes aware of any loss or theft or
unauthorized use of any of its activation code(s).
Client may not use the Software or Intellectual Property for
third-party training, commercial time-sharing, rental or service bureau
use, or outsourcing for third parties. Client agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Intellectual Property, except as specified by law.
Use of the Software by Client's authorized users will be subject
to this Agreement, provided such authorized users shall be restricted to
their own personal use of the Software.
Where applicable, Preclick will bill Client's credit card upon
issuance of a Software activation code indicating Client's ability to
upgrade their Software. By law sales tax will be added to any activation
code purchased by a resident with a billing address inside the state of
New Jersey. Preclick will accept returns of unused Software activation
codes as long as the refund is requested within 30 days of the purchase
date. Client will be charged a credit card processing fee and a shipping
and handling fee if deemed applicable by Preclick. Preclick will only
give refunds on Software which has been used if the software is
defective. Defective software will be replaced with the exact same
Software title. If there is not a fix for the defective software,
Preclick may issue a refund for the purchase price if the request is
made within 30 days of purchase. Preclick does not offer prorated
refunds. Preclick is not responsible for problems arising when Clients
successfully or unsuccessfully try to install the software on computers
that do not support Preclick's minimum system requirements. Preclick
requires Windows 98, ME, 2000, XP, a PC with 486 or higher processor, a
minimum 192 MB RAM and 10 MB free hard drive space for installation.
Linking/Advertising. If Client operates a Web service and wishes to
link to the Preclick Web site, Client may link only to the home page or
the product download page on its site and not to any other portion of
the site. Preclick reserves the right to reject or terminate any links
to its web site at any time and for any reason. Client acknowledges
that Preclick does not review sites or advertisements linked to its Web
site and shall not be liable for any third party advertising,
information, or Intellectual Property of any nature, or for any
transaction Client enters into, or any goods or services obtains,
through any linking with its Web site, of for any off-site or stored
pages, or any old or expired links. Client hereby irrevocably waives
any claim against Preclick in connection with any of the foregoing.
Privacy Policy. Preclick's Privacy Policy is set forth at Preclick's
website www.Preclick.com. The Preclick Privacy Policy is part of this
Agreement and governs collection and use of personal data about users
through the Software. Subject to the terms of the Preclick Privacy
Policy and applicable law, Preclick retains exclusive rights to all
data, material, or other information about users, including demographic
data, information about personal preferences and any other material
provided to Preclick. Client acknowledges that by becoming a Client,
they consent to receipt of certain emails and product upgrades from
Preclick in connection with the use of the Software. No third party
shall be permitted to use such material without Preclick's specific
prior written consent and only as permitted under the Preclick Privacy
Policy. Client agrees to link its Privacy Policy with Preclick's
Privacy Policy.
Support. Preclick will provide technical support for Client's
access and use of the Software and Intellectual Property. Such support
shall consist of problem identification and diagnosis and general
technical assistance. Such support shall be available by email, Monday
through Friday, except Preclick holidays, between the hours of 9:00 AM
and 5:00 PM Eastern Time, with an initial response to email notice
within 72 hours of client's email notice to support@preclick.com. From
time to time Preclick will issue upgrades, modifications or fixes to
resolve or eliminate technical problems or defects (whether reported or
unreported), but is not obligated to do so on any priority basis.
International Use. If Client accesses the Software from outside the
United States of America, Client accepts full responsibility for
compliance with all local laws, if applicable. The Intellectual Property
may not be appropriate or legal to use outside the United States of
America and Preclick disclaims all responsibility with respect to any
such use. Software included in the Intellectual Property is further
subject to United States export controls; no software may be downloaded
or otherwise exported or re-exported (1) into (or to a national or
resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other
country to which the U.S. has embargoed goods, or (2) to anyone on the
U.S. Treasury Department list of Specially Designed Nationals or the
U.S. Commerce Department's Table of Deny Orders. By using the Software
and Intellectual Property, Client represents and warrants that neither
Client nor its authorized users are located in, under the control of, or
a national or resident of any such country or on any such list.
Authorized Third Parties. Preclick reserves the right to use third
parties to provide any necessary services to Preclick and/or Client in
connection with Preclick providing the products and services offered
through the Software.
Access to Password Protected or Secure Areas. Access to and use of
password protected and/or secure areas of the Preclick Web site is
restricted to authorized users only. Unauthorized individuals attempting
to access these areas of the Preclick Web site shall have the license
granted under Section 2 immediately terminated and may be subject to
prosecution under applicable law.
Use of "Cookies". Preclick reserves the right to store information on
Client's computers in the form of a "cookie" or similar file for
purposes of modifying the Software to reflect the preferences of
Client's authorized users. Preclick's Privacy Policy provides
additional information regarding its use of cookies, as well as
procedures for disabling cookies.
Confidentiality of Client Communications. Except as required by law
and in accordance with the Preclick Privacy Policy, Preclick will
maintain the confidentiality of all Client communications, which contain
personal user information and which are transmitted directly to
Preclick. Postings by Client's authorized users on any message board or
in any chat room will not be protected as confidential and Preclick may
use information contained in any such postings (including any ideas,
concepts, know-how or other intellectual property) for any purpose
whatsoever.
Indemnity.
Client hereby agrees to release and indemnify and hold
Preclick, its officers, directors, agent and employees ("Indemnified
Parties") harmless from and against any and all liabilities, damages,
losses, expenses, claims, demands, suits, fines or judgments, including,
but not limited to, attorneys fees, costs and expenses incident thereto,
which may be suffered by, accrued against, be charged to or recovered
from the Indemnified Parties, by reason of, arising out of or in
connection with any claim by a third party arising out of or in
connection with any act, error or omission of Client, under or relating
to this Agreement or relating to the performance or failure of
performance of the Software or Intellectual Property; provided, however,
that claims subject to Preclick's indemnity obligation under Section
11(b) shall be excepted. Client hereby waives and releases Preclick
from any and all obligations and liabilities and any and all rights,
claims and remedies of Client against Preclick, express or implied,
arising by law or otherwise, resulting from any defects, delays, errors,
malfunctions or interruptions of the Software or Intellectual Property;
provided, however, that claims subject to Preclick's indemnity
obligation under Section 11(b) shall be excepted, whether or not beyond
the control of Preclick or caused in whole or in part by the negligence
of Preclick.
Preclick will defend and indemnify Client against any claim
that any of the Intellectual Property infringes any United States
copyright, patent, trade secret, or other proprietary right of a third
party, provided that: (a) Client notifies Preclick in writing within 30
days of the claim; (b) Preclick has sole control of the defense and all
related settlement negotiations; and (c) Client provides Preclick with
the assistance, information and authority necessary to perform
Preclick's obligations under this Section 11(b). Preclick will
reimburse Client's reasonable out-of-pocket expenses incurred in
providing such assistance. Preclick shall have no liability for any
claim of infringement based on the combination or use of the
Intellectual Property with software, hardware or other materials not
furnished by Preclick if such infringement would have been avoided by
use of the Intellectual Property alone.
If the Intellectual Property is held or are believed by
Preclick to infringe third party rights, Preclick shall have the option,
at its expense, to (i) modify the Intellectual Property to be
noninfringing; or (ii) obtain for Client a license to continue using the
Intellectual Property. If it is not commercially reasonable to perform
either of the above options, then Preclick may terminate the license for
the infringing Intellectual Property and refund the license fees paid by
Client. This Section 11(c) states Preclick's entire liability and
Client's exclusive remedies for infringement of the Intellectual
Property.
Limitation of liability for use of the service. Preclick makes
no warranties or representations as to the accuracy, truthfulness,
usefulness, effectiveness, reliability, or security of the intellectual
property or any products or services offered through the service, and
assumes no liability or responsibility therefore. Client agrees that
neither Preclick, its officers, directors, employees, or agents, nor its
licensors will be liable, whether in contract, tort, strict liability or
otherwise, for any indirect, punitive, special, consequential, incidental
or indirect damages (including without limitation lost profits, cost of
procuring substitute service or lost opportunity) arising out of or in
connection with the use of the service, even if Preclick is made aware of
the possibility of such damages. This limitation on liability includes,
but is not limited to, computer viruses or client's use or inability to
use the service or intellectual property; any errors, omissions or defects
in the service or intellectual property; losses from interruption;
termination or failed operation of the service; or any breaches of
security with respect to any of Client's stored information; failure of
mechanical or electronic equipment or communication lines; telephone or
other interconnect problems; theft; or any force majeure event. Preclick
cannot and does not guarantee continuous, uninterrupted or secure access
to the service. Preclick's liability to Client shall not, for any reason,
exceed the aggregate payments actually made by Client to Preclick over the
course of the existing term.
Disclaimer of warranties. Client expressly agrees that
use of the service is at client's sole risk. The intellectual
property, service and products and services offered through the
service are available strictly on an "as is" and "as available"
basis without warranties of any kind, either express or implied,
including but not limited to warranties of title, non-infringement
or implied warranties of merchantability or fitness for a particular
purpose or otherwise, other than those warranties which are implied
by and incapable of exclusion, restriction, or modification under
applicable law.
Termination. This Agreement shall remain in full force
and effect after Client's acceptance until terminated,
suspended, or canceled for any of the following reasons: (1)
upon 30 days written notice by Preclick to terminate this
Agreement; (2) immediately by Preclick for any unauthorized
access or use by Client, including permitting an unauthorized
person or entity to use Client's identification number to
access the Software, or any other unauthorized access or use
of the Software; or (3) immediately, if Client violates this
Agreement or tampers with or alters any of the Intellectual
Property. Termination, suspension, or cancellation of this
Agreement or Client's access rights shall not affect any
rights or remedies available to Preclick. Upon termination of
this Agreement, all rights granted to Client to use the
Software or Intellectual Property will terminate.
Infringement policy. Preclick, on behalf of itself and its
licensors, reserves the right, but not the obligation, under the
Digital Millennium Copyright Act (the "Act"), 17 U.S.C. Section 512
to terminate Client's license to use the Software and Intellectual
Property if it determines that Client is involved in infringing
activity, including alleged acts of first-time or repeat
infringement, whether or not the material or activity is ultimately
determined to be infringing. Preclick and its licensors accommodate,
and do not interfere with, standard technical measures used by
copyright owners to protect their materials. In addition, pursuant
to 17 U.S.C. Section 512(c), Preclick, on behalf of itself and its
licensors, has implemented procedures for receiving written
notification of claimed infringements and for processing such claims
in accordance with the Act. Our designated agent to receive
notification of claimed infringement is:
In addition, any written notice regarding any defamatory or
infringing activity, whether of a copyright, patent, trademark, or
other proprietary right, should be sent to Preclick's designated
agent, listed above, and must include the following information.
A physical or electronic signature of a person authorized to act
on behalf of (1) the owner of an exclusive right that is allegedly
infringed or (2) the person defamed.
Identification of the copyrighted work claimed to have been
infringed, or, if multiple copyrighted works at a single online
Software are covered by a single notification, a representative
list of such works at that Software. Similarly for other types of
infringing materials, a list of such materials.
Identification of the material that is claimed to be infringing,
to be the subject of infringing activity, or that is claimed to be
defamatory and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit us to
locate the material.
Information reasonably sufficient to permit Preclick to contact
Client, such as Client's address, telephone number and/or email
address.
A statement that Client has a good faith belief that use of the
material in the manner complained of is not authorized by the
copyright or other proprietary right owner, its agent, or the law.
A statement that the information in the notification is
accurate, and under penalty of perjury, that either Client is, or
Client is authorized to act on behalf of, the owner of an exclusive
right that is allegedly infringed or the person defamed.
Choice of Law. This Agreement will be governed by, and enforced
solely and exclusively in accordance with, the laws of the State of
New Jersey, without regard to its choice of law provisions. Client
agrees that the Federal and state courts located in New Jersey will
be the sole and exclusive forum for the resolution of any and all
disputes or controversies arising out of, or in connection with,
this Agreement. Client hereby consents to the jurisdiction of such
courts and irrevocably waive any objections thereto, including on
grounds of forum non conveniens, regardless of the location from
which Client or its authorized users access the Software. The
failure of Preclick to exercise or enforce any right or provision
of this Agreement shall not constitute a waiver of such right or
provision. Client agrees that regardless of any statute or law to
the contrary, any claim or cause of action arising out of or
related to the use of the Software or the Intellectual Property or
this Agreement must be filed within one (1) year after such claim
or cause of action arose or be forever barred. The Section titles
in this Agreement are for convenience only and have no legal or
contractual effect.
Severability and Survival. If any provision of this Agreement
is determined to be invalid, all other provisions shall remain in
full force and effect. The provisions of Sections 1,3,6,13,14,15,18
and 22 and will survive any termination of this Agreement.
Modification. Preclick may modify or assign this Agreement at
any time. Notification of discontinuance or changes to this
Agreement may be posted on the Software, or sent to Client via
email or by first class mail. Client's continued use of the
Software after the posting of any amendment to this Agreement will
constitute Client's agreement to be bound thereby. Preclick may
modify, suspend, discontinue, delete, or restrict the use of any
portion of the Software at any time without prior notice or
liability. Preclick may deny access to the Software by any person
at any time for any reason.
Merger. This Agreement constitutes the entire and final
agreement between Client and Preclick relating to use of the
Intellectual Property and access to the Software, and supersedes
all other communications or agreements with respect to its subject
matter.
Cooperation. Preclick will fully cooperate with law
enforcement authorities and legal proceedings requiring Preclick to
disclose the identity of users of the Software.
ACCEPTANCE OF TERMS. BY REGISTERING TO USE THE SOFTWARE, AND BY
ACCESSING OR USING THE SOFTWARE, CLIENT AGREES TO BE BOUND BY THE
TERMS OF SERVICE OF THIS AGREEMENT, AS MODIFIED FROM TIME TO TIME.
CLIENT UNDERSTANDS THAT, IF IT IS DISSATISFIED WITH THE SOFTWARE OR
THE INTELLECTUAL PROPERTY, CLIENT'S SOLE AND EXCLUSIVE REMEDY IS TO
DISCONTINUE USING THE INTELLECTUAL PROPERTY AND THE SOFTWARE.
CLIENT AGREES TO: (A) PROVIDE TRUE, ACCURATE, CURRENT AND COMPLETE
INFORMATION ABOUT ITSELF AS PROMPTED BY THE REGISTRATION FORM (SUCH
INFORMATION BEING THE "REGISTRATION DATA") AND (B) MAINTAIN AND
PROMPTLY UPDATE THE REGISTRATION DATA TO KEEP IT TRUE, ACCURATE,
CURRENT AND COMPLETE. IF CLIENT PROVIDES ANY INFORMATION THAT IS
UNTRUE, INACCURATE, NOT CURRENT OR INCOMPLETE, OR PRECLICK HAS
REASONABLE GROUNDS TO BELIEVE THAT SUCH INFORMATION IS UNTRUE,
INACCURATE, NOT CURRENT OR INCOMPLETE, PRECLICK HAS THE RIGHT TO
SUSPEND OR TERMINATE CLIENT'S LICENSE AND REFUSE ANY AND ALL
CURRENT OR FUTURE USE OF THE SITE SERVICE AND CONTENT INTELLECTUAL
PROPERTY (OR ANY PORTION THEREOF).