Pictor License Agreement
Last updated January 2024
BY CLICKING “OK”, “I ACCEPT” “I AGREE” OR SIMILAR BUTTON, OR ACCESSING, INSTALLING, USING, THE PICTOR SOFTWARE AND SERVICE (EACH AS DEFINED BELOW) YOU AGREE TO THESE LICENSE TERMS AND CONDITIONS (“AGREEMENT”), WHICH TOGETHER WITH THE ORDER FORM (DEFINED BELOW), CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU OR THE ENTITY YOU REPRESENT (“LICENSEE”), AS SPECIFIED IN THE ORDER FORM (DEFINED BELOW) AND PICTOR, LLC (“PICTOR,” EACH OF LICENSEE AND PICTOR, A “PARTY”), WITH RESPECT TO LICENSEE’S ACCESS AND USE OF PICTOR’S SOFTWARE AND SERVICE FOR THE OPERATION, MANAGEMENT, AND OF PHOTOBOOTHS (SUCH SOFTWARE, “SOFTWARE”, AND UNLESS OTHERWISE INDICATED, SUCH SOFTWARE AND SERVICE TOGETHER, THE “SERVICE”). AS USED HEREIN, “ORDER FORM” MEANS THE PRINTED OR ELECTRONIC FORM PROVIDED BY PICTOR FOR THE ORDERING AND PROVISION OF THE SERVICE, WHICH STATES THE DETAILS OF THE ORDER AND LICENSE, INCLUDING ON A WEBPAGE OR WEBPAGE(S) (SUCH AS, WITHOUT LIMITATION, “ORDER” OR “CHECKOUT PAGES”), WHICH HAS BEEN EXECUTED, PLACED OR SUBMITTED BY YOU AND EXECUTED OR ACCEPTED BY PICTOR.
THIS AGREEMENT MAY BE MODIFIED FROM TIME TO TIME BY PICTOR IN ITS SOLE DISCRETION. SUCH MODIFICATIONS SHALL COME INTO EFFECT UPON TEN (10) DAYS’ WRITTEN NOTICE TO LICENSEE. SUCH MODIFICATIONS SHALL COME INTO EFFECT UPON THE COMPLETION OF SUCH TEN (10) DAY PERIOD. IN THE EVENT OWNER DOES NOT AGREE TO ANY SUCH MODIFICATIONS, OWNER MAY TERMINATE THIS AGREEMENT (AND THE LICENSE, AS DEFINED BELOW) PURSUANT TO SECTION 13.2 OR 13.3 BELOW.
License.
Upon Pictor’s acceptance of Licensee’s Order Form, subject to the terms of this Agreement and Licensee’s compliance with them, Pictor hereby grants Licensee a non-exclusive, non-perpetual, non-sublicensable, non-assignable, non-transferable fee-bearing limited license (“License”) during the Term to:
- Install copies of the Software on photobooth computers which Licensee owns, operates, and leases to its customers (“Customer”) for use by event participants who use the photobooth (“End Users”) pursuant to an End User License Agreement (define below), and, unless otherwise agreed in the Order Form (defined below), under Licensee’s own label (as permitted within the configuration options in the Software);
- To install on its own computers, and use internally, a reasonable number of copies of the Software to provide first-level support to End Users;
- Access and use the portions of the Service accessible via the dashboard located at online portal made available by Pictor.
Trial Licenses.
Notwithstanding the above, or anything to the contrary, in the event that Licensee has been offered or provided a “trial” or similar or other free or discounted license, or copy or access or use of the Software or Service, then unless otherwise explicitly set forth in an Order Form pursuant to which Licensee was permitted to download or to receive access or use of the Software or Service, the License granted shall be limited to the installation of a single (1) copy of the Software for internal use only and for thirty (30) days (such License, a “Trial License”, such Trial License period, “Trial Term”).
Pictor may suspend or terminate a Trial License at any time for any reason or no reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PICTOR UNDERTAKES NO OBLIGATIONS, AND MAKES NO WARRANTIES, GUARANTEES, COMMITMENTS, OR REPRESENTATIONS, ALL OF WHICH ARE HEREBY DISCLAIMED, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR SERVICE OFFERED, PROVIDED OR MADE AVAILABLE PURSUANT TO A TRIAL LICENSE, REGARDLESS OF WHETHER PICTOR REQUIRES THE PAYMENT OF ANY AMOUNT IN CONNECTION WITH THE TRIAL LICENSE.
Licensee acknowledges and agrees that unless expressly agreed by Pictor, (i) the Trial Term does not renew or extend, and (ii) at the conclusion of a Trial Term, Licensee shall be required to pay all Fees in connection with access and use of the Service. In the event that at the conclusion of the Trial Term, Licensee orders an additional Term, the Effective Date (defined below) and the Term shall be calculated based on the date of such order and not include the Trial Term.
Restrictions.
Licensee shall not, and shall not allow any of its employees, consultants, staff or other personnel (“Personnel”) or any third party to:
- except as explicitly permitted in this Agreement, give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, transfer or distribute any portion of the Service to any third party or make the Service available in any service bureau or hosted or managed services arrangement;
- circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service;
- reverse engineer, decompile or disassemble the Service or any components thereof;
- modify, translate, patch, alter, change or create any derivative works based upon the Service, or any part thereof;
- use any robot, spider, scraper, or other automated means to access the Service for any purpose;
- take any action that imposes or may impose (at Pictor’s sole discretion) an unreasonable or disproportionately large load on Pictor’s or its third party service providers’ infrastructure;
- interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities;
- except as explicitly permitted in this Agreement, remove, deface, obscure, or alter Pictor’s or any third party’s copyright notices, trademarks, text or hyperlinks or other proprietary material affixed to or provided as part of the Service, or use or display logos of the Service differing from Pictor’s own without Pictor’s prior written approval;
- use or access the Service to develop a competing service or product;
- use the Service to transmit, display or otherwise process, or use the Service on, or with, a content which (a)is obscene, vulgar, profane, sexually explicit, defamatory, religiously inflammatory, violent, inciting, threatening, discriminatory or hate speech directed at an individual or group (e.g., based on race, ethnicity, gender, sexual orientation, religion or nationality); (b) is related to the promotion or sale of weapons, illicit drugs, or pornography, or illegal items, services or activities; (c) infringes the rights of third parties; or (d) negatively impacts the reputation and goodwill of Pictor in any way (all of the foregoing to be determined in Pictor’s sole discretion);
- export the Software to any jurisdiction outside the United States; and/or
- use the Service in any unlawful manner (including without limitation violation of any data protection or privacy legislation) or in breach of this Agreement. In all cases, Licensee shall be and remain liable for any act or omission of its Personnel that would constitute a breach of this Agreement if such acts or omissions were by Licensee. Without limitation to the above, the above restrictions limit the scope of the License granted in Section 1 above.
Intellectual Property Rights.
Ownership.
All right, title, or interest, including all intellectual property rights, in and to the Software, the Service, the Documentation, the Pictor Marks (defined below), and any other materials or information provided or made available by Pictor in connection with the foregoing or Pictor’s other products and services (collectively, the “Pictor Materials”) and all addition, modifications, and improvements to, and all derivative works based upon the Pictor Materials any portion thereof (collectively, “Derivatives”) shall remain the sole and exclusive property of Pictor. In the event License creates or acquires any right, title or interest in or to any Derivatives, Licensee hereby assigns such Derivatives and all right, title and interest therein, including Intellectual Property Rights, to Pictor.
Definitions.
“Pictor Marks” means all trademarks, service marks, logos, branding, trade dress, and package designs (“Marks”), used by Pictor or in connection with the Service and all goodwill and reputation associated with the foregoing. “Intellectual Property Rights” means any and all right, title and interest in and to patents, inventions, discoveries, copyrights, works of authorship, trade secrets, Marks, technical information, data, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, software, code, algorithms, architecture, records, documentation, and other intellectual, intangible and industrial property, in any form and embodied in any media, whether capable of protection or not, whether registered or unregistered, and including all applications, registrations, renewals, extensions, continuations, divisions or reissues thereof; as well as any moral rights, rights of privacy, rights of publicity and similar rights subsisting therein.
Feedback License.
In the event Licensee notifies or provides Pictor of or with any feedback, ideas or suggestions regarding the Service or any portion thereof or Pictor’s business, (collectively, “Feedback”), Licensee hereby grants Pictor a worldwide, non-exclusive, sublicensable (including in unlimited tiers), transferable, perpetual, irrevocable, royalty-free, and fully paid license to use, process, modify, distribute, create derivative works of, publicly display and perform, broadcast, sell, make, import, export, and otherwise fully exploit, for any use and purpose whatsoever, (all such actions, collectively, “Use”) such Feedback. For the avoidance of doubt, such Feedback shall not be deemed Licensee’s confidential information.
Account.
Licensee may be required to create an account or to provide information to Pictor in order for an account to be set up and to access and use the Software and/or Service (“Account”). Licensee shall not allow anyone other than its personnel operating under its supervision and control to access and use its Account. Licensee agrees to provide all information required in connection with the Account and to only provide accurate and updated information. Licensee shall: (i) keep all Account login details and passwords secure at all times; (ii) be liable for the activity that occurs on or through its Account; and (iii) promptly notify Pictor if Licensee becomes aware of any unauthorized access or use of its Account.
Relationship with Customers and End Users.
Customer Agreement; EULA.
If the Order Form indicates that this is a white-label arrangement, Licensee shall be responsible for incorporating within the Software (in the manner permitted by the options offered in the Software) an end user license agreement between Licensee and the End User which (i) is at least protective of Pictor’s rights as the terms of this Agreement and includes provisions substantially similar to the restrictions set forth above and does not grant End User’s rights in the Software or Service beyond those authorized herein; (ii) obtains a license from the End User to enable Pictor to Use the Licensee Content pursuant to this Agreement; (iii) excludes, to the maximum extent permitted by applicable law, Pictor’s liability to the End User, and provides that any allegation or claim that the End User may have, and the End User’s exclusive remedy for any such allegation or claim, shall be to made to the Licensee; (iii) is consistent with this Agreement (such agreement, the “EULA”). Licensee
Licensee shall enter into an agreement with each Customer which (i) does not perpetually or irrevocably license the Software or sell any copies of the Software or any hardware on which copies of the Software reside; (ii) otherwise includes the terms, and complies with the requirements set forth in, Section 6.1.1(i), (ii) and (iii) above (“Customer Agreement”).
For the purposes of complying with the obligations in this Section, Licensee shall refer to Pictor as its “licensor.”
Licensee (i) shall be responsible for any act or omission by a Customer or End User which if committed or omitted by Licensee would be in breach of this Agreement; (ii) shall promptly enforce, and sue for damages in respect of violation of, any provisions of a Customer Agreement or EULA which pertain to Pictor, the Software, Service, or other Pictor Materials; and (iii) shall, upon Pictor’s request, assign to Pictor its rights, under the Customer Agreement or EULA, or if necessary to effectuate such assignment, and the purpose of this section, assign Pictor the entire Customer Agreement or EULA, so Pictor may so enforce provisions of, or sue for damages due to violation of, the Customer Agreement or EULA.
Responsibility.
Without limitation to any rights which Pictor may have, Licensee acknowledges and agrees that Pictor does not have a direct relationship with the End User or Customers and relies on Licensee in its dealing with End Users. Licensee shall at its own cost and expense, enforce, using all reasonable measures, the provisions of each EULA and Customer Agreement, to the extent they pertain to Pictor, the Software or the Service. Licensee shall not enter into any agreement or make any covenant, representation, warranty, commitment or guarantee (i) in respect of the Software or the Service which (a) is inconsistent with this Agreement; or (b) exceeds those made by Pictor herein; or (ii) in the name of or on behalf of Pictor or its Affiliates. Licensee shall indemnify, defend and hold harmless Pictor, its Affiliates, and its and their directors, officers, Personnel, and agents, from and against, any demand, claim, suit, action, proceeding, notice, award, loss, liability, damage, cost or expense (including, without limitation, reasonable attorneys and litigation expenses) (collectively, “Losses”) arising from or in relation to (i) any allegation or claim made by an End User or Customer in connection with use of the Software or Service; (ii) acts or omission of Licensee or any third party on its behalf, the violation of any EULA, Customer Agreement or the provisions of this Section 6 or Licensee’s relationship with the End User or Customer.
Licensee Content.
Licensee hereby grants Pictor a license to Use the content and information uploaded or provided by Licensee and End Users to or for the Software and Service (“Licensee Content”) for the purpose of (i) providing the Software and Service to Licensee and End Users, and (ii) for analytical purposes in order to improve Pictor’s products and services. Licensee represents, warrants and undertakes that (i) it has, and shall have, sufficient right, title and interest, in and to the Licensee Content, and under applicable law, in order for it and Pictor to Use the Licensee Content and grant the licenses specified herein, (ii) the Licensee Content, and the creation, and use and exploitation thereof by (whether by Pictor, Licensee, or otherwise in connection with Licensee’s use of the Software and Service) shall not violate, infringe, or misappropriate any third party rights, including intellectual property rights, intellectual property, information, trade secrets or applicable law. Licensee shall be solely responsible for, and shall indemnify, defend, and hold harmless Pictor, its Affiliates (defined below), and its and their directors, officers, Personnel, and agents, from and against all Losses initiated, made or filed against, incurred or suffered by Pictor in connection with the Use of the Licensee Content.
Support.
Pictor will provide Licensee with reasonable support (as determined in Pictor’s sole discretion) for its use of the Software and Service. Such support may be via online chat or other digital means, and unless agreed or reasonably requested by Pictor, shall be solely during Pictor’s normal business hours. Licensee shall, and shall ensure that its Customers, promptly download and install all enhancements, updates, upgrades, or patches which Pictor makes available (“Updates”) in accordance with Pictor’s instructions.
Storage of Photos.
The Service is not a hosting or storage service. Licensee shall be solely responsible for backing up and promptly downloading all Customer Content. During the License Term (defined below), Pictor’s policy as of the date first written above is to generally not delete photos uploaded to the Service for a reasonable amount of time after the upload date, but shall in no event be required to maintain any photo or file more than one (1) year after the original date it is uploaded. Within thirty (30) days following termination or expiration of this Agreement, Pictor shall, upon Licensee’s request, permit Licensee to download or export photos stored under Licensee’s Account. Thereafter, Pictor may delete such photos or other information uploaded or stored on the Service by Licensee.
Fees; Payment.
Fees.
Licensee shall pay the amounts set forth in the Order Form (such amounts, “Fees”). Licensee acknowledges and agrees that Fee amounts set forth in the Order Form apply during the Term for which the Order Form was placed. Pictor may modify prices with respect to any Renewal Term or extension periods.
Payment Terms.
Unless otherwise set forth in the Order Form: (a) Licensee shall pay the Fees within thirty (30) days of the date of Pictor’s invoice, in United States Dollars; (b) all Fees paid are non-refundable; and (iii) the method of payment shall be set forth in the Order Form. Any amounts not paid when due shall accrue interest on a daily basis until paid in full, at the lesser of the rate of (i) one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable Law.
Taxes.
Unless otherwise set forth in the Order Form, all Fees are exclusive of any taxes or third-party fees, tariffs, or other charges, all of which are the responsibility of Licensee and shall be added to the amounts paid. In the event that any withholding tax or obligation applies, the amount due to Pictor shall be increased such that the total amount, after any withholding or deduction, paid to Pictor is equal to the amount of Fees which otherwise would have been due to Pictor, free of liability of any kind. Pictor shall cooperate in good faith to avoid (legally) such withholding requirements.
Personal Data.
Customer Use Data.
Licensee acknowledges and agrees that its access to and use of the Software and Service and any information transmitted to, obtained or stored by Pictor about Licensee or its Personnel, is subject to Pictor’s Privacy Policy as may be updated from time to time, which is currently available at [*] (“Privacy Policy“).
End User Data.
Access and use of the Software and Service involve End User engagement and submission of data and content, which may include, depending on Licensee’s activities, information relating to an identified or identifiable individual (“Personal Data”), to and processing of such Personal Data by Licensee, its third-party service providers, and Pictor and its third-party service providers. Licensee undertakes to, and represents and warrants that it does and shall continue to, obtain all consents from and provide all notices to End Users as required by applicable law, including in order to allow the transfer to and processing by Pictor, its affiliates and third-party service providers (if applicable), of all Personal Data or other information and content provided or submitted by End Users as contemplated by this Agreement. The Parties may agree that the Data Processing Addendum available at www.[*].co/legal (“Addendum”), as may be modified from time to time, shall apply to the Parties in respect of transfer and processing (the taking of any action or set of actions in respect) of Personal Data. In such case, the Addendum and is hereby incorporated by reference into this Section 11. Furthermore, Licensee shall enter into any other relevant agreements which Pictor believes necessary in order to comply with any law, regulation or judicial or governmental ruling. Without limitation to Licensee’s representations, warranties undertakings in this Section 11.2 and otherwise in this Agreement, until such time as the Parties agree otherwise, such as pursuant to the Addendum, Licensee represents, warrants, and undertakes that the Licensee Content does not and shall not contain Personal Data relating to data subjects located in, or from whom data has been collected because of their association with, a jurisdiction outside the United States. Notwithstanding anything to the contrary, Licensee (i) shall remain solely responsible and liable for Personal Data, and for the execution of any agreements (or failure to execute such agreements) pursuant to the laws and regulations of the jurisdictions in which Licensee is incorporated, operates or uses the Software or Services and (ii) shall defend, indemnify, and hold harmless Pictor and its Affiliates, and its and their directors, officers, Personnel and agents from and against any claims, actions, demands, notices, proceedings, damages, liabilities, losses, costs and expenses (including reasonable attorney’s fees and litigation costs) arising out of the Personal Data, Pictor’s receipt, Use and processing, thereof materially in accordance with this Agreement, or Licensee’s breach of this Section 11.2, the Addendum or any applicable law.
Audit Rights; Assistance.
During the Term and for a period of two (2) years thereafter, (1) Licensee shall keep true and accurate books of account and records to demonstrate its compliance with this Agreement; and (ii) upon Pictor’s request, Licensee shall (a) make available to Pictor all information and records necessary for the requesting Party to demonstrate compliance with its obligations and the veracity of its representations and warranties hereunder; (b) permit Pictor or its designees to audit such books and records at Licensee’s premises during the regular business hours in the jurisdiction in which Licensee’s premises is located; and (c) permit Licensor to audit Licensee’s use of the Software and Services and its systems and devices for compliance with this Agreement. In the event any such audit reveals a breach of this Agreement, or use of the Software or Services not authorized hereunder, then, without limitation to Licensor’s rights or remedies available hereunder or otherwise at law or equity, Licensee shall promptly reimburse Pictor for the costs of such audit.
Without limitation to the above, Licensee shall promptly upon Pictor’s request, (i) provide Licensee with reports on its use of the Software and Services, including, without limitation, the location and use of copies of the Software, and other information requested by Pictor, and (ii) provide all reasonable assistance and cooperation requested by Pictor, as determined by Pictor in its sole discretion, to perform its obligations or exercise its rights under this Agreement.
Term & Termination.
Term.
Unless otherwise set forth in the Order Form or this Agreement, the License shall commence on the date the Order Form is accepted by Pictor (“Effective Date”) in and remain in effect for the license period or term set forth in the Order Form (“Initial Term”), and shall thereafter renew automatically for successive periods equal in length to the Initial Term, unless either Party notifies the other thirty (30) days prior to the date of renewal that it does not wish to renew the Agreement (each a “Renewal Term”, and each Renewal Term together with the Initial Term, the “License Term”).
Termination for Convenience by Licensee.
Licensee may terminate this Agreement at any time for any reason or no reason at all, upon written notice to Pictor, provided that Licensee shall remain liable for the remainder of Fees due, and shall receive no refund for Fees paid, in connection with the then-current License Term.
Termination due to Modification by Licensee.
Licensee may terminate this Agreement due to a rejection of a modification of this Agreement by Pictor by delivering written to Pictor within ten (10) days of Pictor’s notice of such modification, provided that Licensee’s notice specifies the offending modification. Notwithstanding the foregoing, Pictor may waive the modification as it applies to Licensee until further notice, in which case the notice of termination shall be ineffective, and the modification shall not apply to Licensee until Pictor notifies Licensee otherwise. Any such notice by Pictor shall be deemed a notice of modification hereunder and shall be subject to the provisions of the second paragraph of the preamble in this Section 13.3.
Termination by Pictor.
Pictor may terminate this Agreement: (a) at any time for any reason or no reason at all, upon ninety (90) days’ written notice to the Licensee; or (b) in the event of material breach of this Agreement by Licensee, upon thirty (30) days’ prior written notice, provided that, if curable, the other Party has not cured the breach within such notice period. Notwithstanding anything to the contrary, Licensee’s breach of Section 3 (Restrictions), 15 (Confidentiality) or delinquency in the payment of Fees or other amounts due pursuant to Section 10 (Fees; Payment) shall be deemed a material breach of this Agreement.
Bankruptcy.
Either Party may terminate this Agreement at any time immediately upon written notice to the other Party if the other Party is declared bankrupt by a judicial decision, undergoes a process of voluntary liquidation, or in the event an involuntary bankruptcy action is filed against the other Party, and such action is not dismissed within sixty (30) days, or in the event the other Party ceases to pay debts as they become due or to operate as an ongoing concern.
Effect of Termination.
General. Upon termination or expiration of this Agreement: (a) the License granted shall cease, (b) all outstanding amounts shall become immediately due and payable; (c) Licensee shall promptly, and within no more than seven (7) days of the effective date of termination, terminate all sublicenses granted to End Users; and (d) Licensee may download and Pictor may delete photos stored on the Service in accordance with Section 9 (Storage of Photos) above.
Liability for Fees.
In the event of termination by Licensee pursuant to Section 13.2 or 13.5, or by Pictor pursuant to Section 13.4(b) or 13.5, Licensee shall pay the remainder of Fees due in connection with the then-current License Term. In the event of termination by Licensee pursuant to 13.3, Licensee shall pay any outstanding Fees due up to the date of termination on a pro-rata basis. Notwithstanding the foregoing, any prepaid Fees for any License Term shall not be refunded.
Survival.
This Section 13.6 and Sections 3 (Restrictions), 4 (Intellectual Property Rights), 6 (Relationship with Customers and End Users), 7 (Licensee Content), 9 (Storage of Photos), 10 (Fees; Payment), 11 (Personal Data), 15 (Confidentiality) through and including 29 (Miscellaneous), and any outstanding obligation and rights accrued, shall survive termination or expiration of this Agreement.
Suspension.
Without limitation to Section 13 (Term & Termination) above, in the event Licensee has not paid any Fees due by the date required or if Pictor believes that the Service is being accessed or used, whether through Licensee’s Account or by End Users, in a manner that may cause harm to Pictor or any third party, in violation of any law or intellectual property, privacy or other rights, or in a manner which violates or would violate the restrictions or requirements in Section 3 (Restrictions), then Pictor may suspend the relevant Account, License or other use or access of the Service, until the Fees are paid or such time as Pictor believes the threat of harm, or actual harm, has passed, as applicable.
Confidentiality.
Licensee may receive or gain access to certain information and materials not generally made available by Pictor or intended for public consumption, whether in tangible or intangible form, and regardless of whether or not marked or designated as such (“Confidential Information”). Licensee acknowledges and agrees that the Order Form, any other terms and conditions agreed to by Licensee other than this Agreement, the Software, Service and Documentation, and all business and technical information with respect to the Software and Service are Confidential Information. Licensee shall (i) use the Confidential Information solely as permitted in this Agreement; (ii) keep the Confidential Information in strict confidence; (iii) take reasonable measures, at least as protective as those taken to protect its own confidential information of like nature, to protect the Confidential Information against disclosure; and (iv) not disclose the Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings) or attorneys. Licensee shall be liable for the acts and omissions of persons or entities to whom it discloses or makes accessible Confidential Information as if done or omitted to be done by Licensee. Upon termination or expiration of this Agreement, or otherwise upon written request of Pictor, Licensee shall promptly return to Pictor all (or the requested, if applicable) Confidential Information, and if embodied electronically, permanently erase it, and certify compliance with the foregoing writing.
Warranties.
Each Party represents and warrants that it (a) is duly organized and validly existing under the laws of its jurisdiction of formation and has the full power and authority to enter into this Agreement; and (b) is not bound by any agreement, obligation or restriction that would interfere with its obligations under this Agreement.
Licensee represents, warrants and undertakes that it and its business do and shall comply with all applicable law, including, without limitation, in connection with its activities which utilize the Services.
Disclaimer.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT TO THE EXTENT EXPLICITLY STATED OTHERWISE IN THIS AGREEMENT: THE SERVICE, ANY PORTION THEREOF, SUPPORT, PROFESSIONAL SERVICES, AND OTHER SERVICES, AND ANY MATERIALS OR INFORMATION PROVIDED OR MADE AVAILABLE BY PICTOR, ITS AFFILIATES OR ANY THIRD PARTY ON ITS OR THEIR BEHALF, ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, TERM OR CONDITION OF ANY KIND WHATSOEVER (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED.
WITHOUT LIMITATION TO THE FOREGOING, PICTOR MAKES NO, AND HEREBY DISCLAIMS, ANY REPRESENTATION, WARRANTY, GUARANTEE, TERM OR CONDITION OF ANY KIND (WHETHER EXPRESS IMPLIED OR STATUTORY) WITH RESPECT TO ACCURACY, QUALITY, RELIABILITY, SECURITY, AVAILABILITY OF THE SOFTWARE, SERVICE, OTHER RELATED SERVICES, ANY OTHER INFORMATION OR MATERIALS, OR SUPPORT PROVIDED, OR THE PHOTOS OR CONTENT CREATED OR PROVIDED IN CONNECTION WITH USE OF ANY OF THE FOREGOING.
PICTOR MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION, WARRANTY OR ANY OTHER COMMITMENT TO MAINTAIN THE SOFTWARE OR SERVICES, OR ANY OTHER PICTOR MATERIALS, OR ANY PORTION OF THE FOREGOING, AS THEY ARE AT ANY GIVEN TIME FOR ANY PERIOD. PICTOR RESERVES THE RIGHT TO, AND LICENSEE AGREES THAT PICTOR MAY, ALTER, MODIFY, REMOVE OR RECALL ANY ASPECT OR PORTION OF THE PICTOR MATERIALS AT ANY TIME WITHOUT PRIOR NOTICE TO LICENSEE.
LICENSEE ACKNOWLEDGES AND AGREES THAT FAILURE BY ITSELF OR A CUSTOMER TO PROMPTLY DOWNLOAD AND INSTALL AN UPDATE OR TO FOLLOW PICTOR’S INSTRUCTIONS OR RECOMMENDATIONS MAY RESULT IN DAMAGE, LOSS OR INJURY FOR WHICH LICENSEE SHALL BE SOLELY RESPONSIBLE.
BETA SERVICES: WITHOUT LIMITATION TO THE ABOVE IN THIS SECTION 17, LICENSEE ACKNOWLEDGES AND AGREES THAT (I) CERTAIN ASPECTS OF THE SOFTWARE AND SERVICE, SUCH AS SPECIFIC FEATURES OR FUNCTIONALITY, AND CERTAIN RELATED SERVICES AND MATERIALS, MAY BE IN, MAY BE RELEASED, OR MAY BE DESIGNATED AS BEING IN A TESTING STAGE (“BETA TESTING”); (II) PICTOR MAY MODIFY, REMOVE OR RECALL ANY SOFTWARE, SERVICE, MATERIAL, FEATURE OR FUNCTIONALITY, OR ANY PORTION THEREOF WHICH IS IN BETA TESTING AT ANY TIME AND WITHOUT PRIOR NOTICE TO LICENSEE; AND (III) DURING BETA TESTING, THE SOFTWARE AND SERVICES, RELATED SERVICES AND MATERIALS, OR SUCH OTHER FEATURES AND FUNCTIONALITY ARE LIKELY TO NOT FUNCTION AS INTENDED OR EXPECTED AND LICENSEE ACCESSES AND USES ANY OF THE FOREGOING AT ITS OWN RISK.
Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, (A) PICTOR, ITS AFFILIATES AND ITS AND THEIR LICENSORS, SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY, OR INDIRECT DAMAGES OR LOSSES OF ANY KIND, OR LOST PROFITS, BUSINESS, REVENUES OR SAVINGS, LOST DATA, DAMAGE OR LOSSES TO GOODWILL, REPUTATION, OR BUSINESS OR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH THIS AGREEMENT, THE SUBJECT MATTER THEREOF, THE SERVICE OR LICENSEE’S OR END USERS’ USE OR ACCESS (OR INABILITY TO USE OR ACCESS) OF OR TO THE SERVICE), THE PROVISION OF (OR ANY FAILURE TO PROVIDE) SUPPORT OR PROFESSIONAL SERVICES OR ANY ACT OR OMISSION BY PICTOR OR ON ITS BEHALF IN RELATION TO THE FOREGOING (COLLECTIVELY, “AGREEMENT SUBJECT MATTER”); AND (B) THE TOTAL CUMULATIVE LIABILITY OF PICTOR, ITS AFFILIATES AND ITS AND THEIR LICENSORS, IN CONNECTION WITH THE AGREEMENT SUBJECT MATTER SHALL NOT EXCEED THE LOWER OF (I) THE FEES ACTUALLY PAID TO PICTOR DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM; AND (II) FIVE THOUSAND U.S. DOLLARS (US $5,000). THE ABOVE LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND REGARDLESS OF THE FORESEEABILITY OR WHETHER PICTOR WAS ADVISED OR AWARE OF THE POSSIBILITY OF THE DAMAGES OR LOSSES, AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (WHETHER IN TORT, BREACH OF CONTRACT OR OTHERWISE).
Indemnification.
Licensee shall indemnify, defend and hold harmless Pictor, its Affiliates, and its and their directors, officers, Personnel, and agents, from and against, all Losses arising from any breach by Licensee of this Agreement (or any act or omission of a Customer or End User, which if by Licensee would be a breach of this Agreement), or by Customer of a Customer Agreement, or End User of the EULA; loss, damage or injury caused by Licensee, its Customer or End Users to any third party, whether as a result of negligence or otherwise, or breach by Licensee of applicable Law or any allegation, which if true, would arise from any of the foregoing.
Insurance.
Licensee shall procure and maintain, in full force and effect, throughout the Term and for a period of three (3) years thereafter the following policies from a US (national) or European reputable insurer for a minimum amount of one million dollars ($1,000,000) per occurrence and five million dollars ($5,000,000) in the aggregate: (a) commercial general liability insurance coverage including, without limitation, for liability for bodily injury or property damage to third parties, contractual liability, and liability for damages resulting from products and services; (b) professional Liability Insurance (Professional Indemnity Insurance or Errors and Omissions Insurance); and (c) cyber security insurance coverage for network risk, cyber liability, and disclosure or loss of data, (including unauthorized access, failure of security, breach of privacy perils, as well at notification costs and regulatory defense). Each such policy shall (i) at a minimum cover Licensee’s activities related to its use of the Software and Service in its own jurisdiction and those jurisdiction in or to which it operates or provides products and services using the Software and Service; (ii) include a waiver of subrogation in favor of Pictor; (iii) include Pictor as an “additional insured”; and (iv) be primary and noncontributory. Upon Pictor’s request, Licensee shall provide Pictor with certificates evidencing the above to Pictor’s satisfaction. The obligations of this Section 20 and the coverage maintained (or not maintained) by Licensee shall not affect or limit Licensee’s liability under this Agreement or otherwise to Pictor.
Governing Law; Jurisdiction.
This Agreement, and the subject matter thereof, and any disputes related to the foregoing shall be governed by the laws of New York State, excluding conflicts or choice of law rules and principles. Any such disputes shall be subject to the exclusive jurisdiction and venue of the courts of competent jurisdiction located in New York County, NY, and each party hereby waives any jurisdictional, venue, or inconvenient forum objections to such courts and venue. Notwithstanding the foregoing, Pictor may seek preliminary or interim injunctive or other relief in any court of competent jurisdiction worldwide.
Equitable Relief.
Licensee acknowledges and agrees that in the event of a breach or threatened breach of its obligations under Section 3 (Restrictions) or Section 15 (Confidentiality), Pictor shall suffer irreparable harm or damage, which may not be readily assessable and which the payment of money cannot repair. Accordingly, Licensee agrees that Pictor shall be entitled to injunctive or equitable relief to enforce the provisions of Section 3 or Section 15 or otherwise prevent, restrain, mitigate or remedy an unauthorized use or disclosure or failure to safeguard, its Confidential Information, without proving damages or posting bond of any kind.
Assignment.
Licensee may not assign or delegate this Agreement, in whole or in part, or any rights or obligations hereunder to any other party, without the written consent of Pictor. Pictor may do so without restriction. Any assignment or delegation in violation of the above shall be null and void. Subject to the foregoing, this Agreement shall bind and benefit the Parties and their respective successors and valid assigns.
Relationship.
The relationship of the Parties is solely that of independent contractors, and nothing in this Agreement shall be construed as creating or giving rise to a partnership, joint venture, franchise, employment, agency, fiduciary or other relationship between them.
Force Majeure.
Other than Licensee’s obligation to pay the Fees, neither Party shall liable for any delay or failure to perform any obligation under this Agreement caused by fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state, electrical outages, network failures, strike, lockout or other labor problem, failures of subcontractors, licensors, service providers or suppliers (including, without limitation, third-party cloud or hosting providers), or by war, riot, embargo or civil disturbance, breakdown, mass illness, outbreaks, pandemics, shut-downs, lock-downs, government instructions not open or go to businesses or place of work, any government-declared disaster, emergency or force-majeure or other instances outside of the reasonable control of the non-performing Party.
Government Use.
The Software, Services and related Pictor Materials, as applicable, are deemed to be “commercial computer software”, “commercial computer software documentation”, and “restricted computer software”, for purposes of Federal Acquisition Regulations (“FAR”) and the Defense FAR Supplement (“DFARS”), and the restrictions set forth in such regulations, and this Agreement shall be deemed to be the license described in such regulations. Any Use of Pictor Materials shall be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
Export Laws.
Licensee represents and warrants that it is not located, does not reside, and is not organized or incorporated in a country or jurisdiction embargoed by the U.S, nor is it, nor shall it be, nor are its Customers or End Users, or shall they be, on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Licensee shall not export, reexport, from the country or jurisdiction listed in the Order Form any Pictor Materials and shall comply with all export control laws and regulations, including, without limitation, the Export Administration Regulations (EAR), Foreign Assets Control Regulations, the International Traffic in Arms Regulations (ITAR), and the trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control.
Notices.
Notices and other communications pursuant to this Agreement shall be in writing and shall be deemed to have been duly made as of the date delivered or transmitted, and shall be effective upon receipt, if delivered personally, sent by air courier, or sent by electronic transmission, with confirmation received, to the address, facsimile number and/or email specified by the recipient Party in the Order Form or otherwise in writing. Unless and until Pictor designates different contact information, Pictor’s address for the delivery of notices is:
Pictor:
Attn: Pictor, LLC
E-mail: support@pictor.pro
Licensee:
As set forth in the Order Form.
All notices sent to Pictor shall be sent both to its mailing (street) address listed above (or which it otherwise designates) and by e-mail. Notwithstanding the above, Licensee agrees that all notices sent to Licensee by (i) the email address designated by Licensee in the Order Form or Service dashboard or profile or account pages, or (ii) via the Service or the Services dashboard or message or notices section, shall be deemed notice to Licensee upon the date delivered.
Miscellaneous.
This Agreement and all exhibits attached hereto constitute the entire agreement between the Parties and supersedes any prior or contemporaneous understandings of the Parties. In the event of any contradiction between this Agreement and any exhibit, any Order Form, the provisions of this Agreement shall prevail unless the Parties explicitly agree in writing that the contradicting provision shall prevail. Any terms in any purchase order issued which contradict or are in addition to those set forth in this Agreement, any Order Form, shall be of no force and effect, even if the purchase order is accepted by Pictor. “Affiliates” means, with respect to a Party, any person, organization or entity controlling, controlled by or under common control with, such Party, where “control” means (i) the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of a person, organization or entity, whether through the ownership of voting securities, by contract or otherwise; (ii) owning more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (iii) the power to directly or indirectly elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity. If any provision of this Agreement is held to be invalid or unenforceable, (i) the remainder will remain in full force and effect, and (ii) the invalid provision shall be substituted with a provision that most closely approximates the original legal and economic effect of the invalid provision. This Agreement may only be amended by an instrument in writing signed by each of the Parties hereto. Notices, waivers, discharges, modifications, amendments, orders, addendums or other writings required under or made in connection with this Agreement shall not be valid unless in writing and signed by a duly authorized representative of the Party against whom enforcement is sought. No waiver under this Agreement shall operate as a continuing waiver, unless expressly agreed otherwise by the Party against whom enforcement of such waiver is sought. Headings are for convenience and shall not be used in interpreting this Agreement. Any right or remedy set forth in this Agreement is, unless stated otherwise, without exclusion of, or limitation to, other rights or remedies available to a Party. The prevailing Party in any action in connection with this Agreement shall be entitled to reasonable attorneys’ fees from the other with respect to such action. This Agreement may be executed in any number of counterparts.