TechSmith AppShow License Agreement

TechSmith AppShow™ for Mac OS X EULA

TechSmith AppShow™ is Copyright © 2014 TechSmith Corporation
TechSmith’s License Agreement for:   TechSmith AppShow™

IMPORTANT-READ CAREFULLY: This TechSmith License Agreement is a legally binding license agreement between you and TechSmith Corporation (“TechSmith”) for the TechSmith Licensed Application identified above and as further defined in this License Agreement. This License Agreement incorporates by reference TechSmith’s Privacy Policy located at http://www.techsmith.com/privacy-policy.html.

BY DOWNLOADING, INSTALLING, EXECUTING, OR OTHERWISE USING THE LICENSED APPLICATION  IN ANY MANNER, SUCH ACTS INDICATE YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT AND YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT DESIRE TO ACCEPT THIS LICENSE AGREEMENT OR AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, PROMPTLY RETURN THE UNUSED APPLICATION TO THE PLACE FROM WHICH YOU OBTAINED IT.

THE LICENSED APPLICATION IS PROTECTED BY U.S. COPYRlGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. TECHSMITH IS AND SHALL REMAIN THE OWNER OF ALL INTELLECTUAL PROPERTY RIGHTS IN THE LICENSED APPLICATION AND SHALL REMAIN THE OWNER OF ALL COPIES OF THE LICENSED APPLICATION. THE LICENSED APPLICATION IS LICENSED TO YOU ON A NON-EXCLUSIVE, NON-ASSIGNABLE, NON-TRANSFERABLE, LIMITED, PERSONAL BASIS, NOT SOLD.

YOU ACKNOWLEDGE AND AGREE:  (A) THAT YOU ARE NOT AN OWNER OF THE LICENSED APPLICATION OR ANY COPIES OF THE LICENSED APPLICATION; (B) THAT YOU ARE A MERE LICENSEE OF THE  LICENSED APPLICATION AND ANY COPIES OF THE LICENSED APPLICATION WITHOUT ANY RIGHT TO FURTHER TRANSFER OR DISTRIBUTE THE LICENSED APPLICATION  (OTHER THAN FOR INSTALLATION ON APPLE BRANDED PRODUCTS RUNNING Mac OS X THAT YOU OWN AND CONTROL AND AS PERMITTED BY THE USAGE RULES SET FORTH IN THE APPLE MAC APP STORE TERMS AND CONDITIONS) OR ANY COPIES OF THE LICENSED APPLICATION OR PROVIDE ACCESS TO THE LICENSED APPLICATION IN ANY MANNER WITHOUT TECHSMITH’S PRIOR WRITTEN CONSENT; (C) NOT TO CHALLENGE THE ENFORCEABILITY OR VALIDITY OF THIS LICENSE AGREEMENT; AND (D) NOT TO INITIATE ANY PROCEEDINGS INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

1.   Acknowledgement. You acknowledge that this License Agreement is between TechSmith and you only, and that Apple, Inc. (“Apple”) is not a party to this License Agreement. You acknowledge that TechSmith is solely responsible for the Licensed Application as further defined in section 2 below and the content thereof. TechSmith is willing to license the Licensed Application to you only upon the condition that you accept all the terms contained in this License Agreement and accept all of its conditions. If you do not accept all the terms and conditions of this License Agreement, then TechSmith is unwilling to license the Licensed Application to you, and you will have no right to download, install, execute or use the Licensed Application.

2.  Scope of License. Subject to your compliance with the terms and conditions of this License Agreement as a condition to the license granted herein and the payment of any applicable fees, if any, TechSmith grants you a non-exclusive, non-transferable license to install and execute the Licensed Application solely for your personal use on any Apple-branded products running  Mac OS X that you own or control and as permitted by the usage rules set forth in the Apple’s Mac App Store Terms and Conditions, provided however, that such grant does not, and will not, include any and all patent rights, and specifically excludes such rights. TechSmith reserves all rights in the Licensed Application not expressly granted to you in this Licensed Agreement. “Licensed Application” means the object code version of the TechSmith AppShow™ software program licensed hereunder, including without limitation, all associated materials, all user documentation, and any modified, updated, or enhanced versions of such programs that TechSmith may provide.

3.   Restrictions. TechSmith’s grant to you of the non-exclusive, non-transferable, limited personal license to install, execute, and use the Licensed Application in a manner consistent with its design, documentation, and your order, is further conditioned upon your compliance with the following conditions: except as expressly specified in this License Agreement you may not: (a) reproduce, publicly perform or display, create derivative works of or otherwise modify, disassemble, reverse compile or reverse engineer any part of the Licensed Application; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Licensed Application to any third party; or (c) make or grant access to the functionality of the Licensed Application through a network or file-sharing service through any hosting, application services provider, service bureau or any other types of services. Any future release, update, or other addition to functionality of the Licensed Application shall be subject to the terms and conditions of this License Agreement.

4.   Maintenance and Support. You acknowledge that neither TechSmith nor Apple will have any obligation to provide any maintenance or support of the Licensed Application.

5.   Disclaimer of Warranty. You acknowledge that the Licensed Application has not been completely tested in all situations. Without limiting the provisions of this section, you acknowledge and agree that TechSmith has no obligation under this License Agreement to correct any defects or errors in the Licensed Application  provided to you under this License Agreement, regardless of whether you inform TechSmith of such defects or errors or TechSmith otherwise is, or becomes aware of, such defects or errors. You acknowledge that the Licensed Application may contain operational malfunctions, errors, or other defects and you agree that you are entering this License Agreement solely for purposes of evaluating, testing, and using the Licensed Application. The Licensed Application is provided “AS IS”, without warranty of any kind. TECHSMITH EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OF ACCURACY, OF QUIT ENJOYMENT, AND NON INFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. TECHSMITH DOES NOT WARRANT AGAINST INTERFERENCE WITH ENJOYMENT OF THE LICENSED APPLICATION. YOUR USE OF THE LICENSED APPLICATION IS AT YOUR OWN RISK. TECHSMITH DOES NOT WARRANT THAT THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE LICENSED APPLICATION WILL OPERATE IN THE COMBINATIONS THAT YOU MAY SELECT FOR USE, OR THAT THE OPERATION OF THE LICENSED APPLICATION WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TECHSMITH OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitation may not apply to you.

In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Licensed Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be TechSmith’s sole responsibility, if any responsibility so exists.

6.   Product Claims. Both parties acknowledge that, except as set forth in Section 14, to the extent expressly provided under the terms and conditions of this License Agreement, TechSmith is solely responsible for addressing any claims made by you or any third party relating to the Licensed Application or your possession and/or use of the Licensed Application, including, but not limited to (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.

7.  Intellectual Property Rights. Both parties acknowledge that in the event of any third party claim that the Licensed Application or your possession and use of that Licensed Application infringes such third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

8.  Ownership. The Licensed Application is licensed, not sold. You own the media on which the Licensed Application may be recorded, but TechSmith retains ownership of the Licensed Application, including all intellectual property rights therein, including, but not limited to, any and all copyrights, trademark, trade dress, trade secret, and patent rights, whether foreign or domestic. The Licensed Application is protected by United States copyright law and international treaties. As a further condition to the license granted herein, you will not delete or in any manner alter the copyright, trademark, patent and other proprietary rights notices or markings appearing on the Licensed Application delivered to you.

9.   Term and Termination.

9.1 Term. This License Agreement and the licenses granted hereunder are effective on the date you accept the terms and conditions of this License Agreement and shall continue unless this License Agreement is terminated by either party pursuant to this section.

9.2 Termination. TechSmith may terminate this License Agreement immediately for any or no reasons without notice to you. You may terminate this License Agreement at any time by destroying all copies of the Licensed Application in your possession or control. This License Agreement will automatically terminate without notice if you breach any term or condition of this License Agreement.

9.3 Survival. The following sections shall survive termination or expiration of this License Agreement for any reason; 2 (“Scope of License”), 5 (“Disclaimer of Warranty”), 7 (“Intellectual Property Rights”), 8 (“Ownership”), 9.3 (“Survival”), 13 (“Limitation of Liability”), 14 (“Your Indemnification of TechSmith”), 18 (“Injunctive Relief”) and 19 (“General”).

10. Your Videos. TechSmith does not verify, endorse or claim ownership in any of the videos you create using the Licensed Application (your “Videos”).

11. Privacy. You consent to TechSmith Privacy Policy located at http://www.techsmith.com/privacy-policy.html incorporated herein by reference and our collection of certain information about your usage of the Licensed Application, including video type, e-mail addresses, encoding time destination to which processed Videos are sent, device identifier, your location and information, and errors in processing the Video. We may create Anonymous Information records from such information by excluding use of this Anonymous Information for internal purposes, such as analyzing usage patterns so that we may enhance the Licensed Application, and to use and disclose any Anonymous Information at our discretion (including sharing it with or providing to third parties). “Anonymous information” means information that is not associated with or linked to your personally identifiable information; Anonymous Information does not permit the identification of individual persons. Notwithstanding the foregoing, we will never share, sell, or otherwise use the content of a Video you provide except to provide you with the Licensed Application or improve the Licensed Application.

12. Acceptable Use. You are solely responsible for any and all Videos that you send using the Licensed Application including making and keeping backup copies of the Videos.

12.1.    Prohibited Content. You agree that you will not use the Licensed Application to create or display any Prohibited Content. “Prohibited Content” is a video that, (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or is pornographic or sexually explicit in nature, (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person, (iii) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (iv) promotes an illegal or unauthorized copy of another person’s work that is protected by copyright or trade secret law, such as providing links to pirated computer programs, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated videos or links to pirated images, music, videos, or movies; (v) is involved in the exploitation of persons under the age of eighteen (18); (vi) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s rights of publicity or privacy, or providing or creating computer viruses and other harmful code; (vii) solicits passwords or personally identifying information for commercial or unlawful purposes from other users; (viii) except as expressly approved by us, involves commercial activities and/or promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (ix) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; or (x) otherwise violates the terms or conditions of this License Agreement or creates liability for us or our users.

12.2    Representations Regarding Your Videos. You represent and warrant that: (a) you own any Video sent or created by you through the Licensed Application or otherwise have the right to display or distribute such Video and (b) your Video does not violate the rights, including privacy rights, publicity rights, copyright rights, patents, trademarks, trade secrets, or other intellectual property rights of any person.

12.3    Lawful Use. You will use the Licensed Application in a manner consistent with any and all applicable laws and regulations and solely for lawful purposes. You may not use the Licensed Application for the transmission of “junk mail” or “chain letters”, unsolicited mass mailing, or “spamming.” The Licensed Application is for the personal use of users only.

13. Limitation of Liability. IN NO EVENT WILL TECHSMITH BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED APPLICATION , WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT TECHSMITH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TECHSMITH’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED FIFTY U.S. DOLLARS (U.S. $50.00). Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

14. Your indemnification of TechSmith. You agree to defend TechSmith from any third-party claim in connection with your use of the Licensed Application, your Videos, or the transmission of your Videos and you agree to indemnify and hold TechSmith harmless against any liabilities, losses, damages, judgments, costs, and expenses (including reasonable attorneys’ fees and court costs), actually incurred in connection with any claim described above. In the event of such third-party claim, TechSmith may: (a) promptly notify you in writing of the claim; (b) provide you, at your expense, with all reasonable information and assistance to defend or settle the claim, and (c) grant you the sole authority and control of the defense and settlement of the claim, provided that you will not settle without the advance written consent of TechSmith to the terms of the settlement.

15. Legal Compliance. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) to any U.S. embargoed countries or (b) to anyone 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. By using the Licensed Application, you represent and warrant as a condition to the license granted under this License Agreement that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on a U.S. Government list of prohibited or restricted parties. You also agree that you will not use the Licensed Application for any purpose prohibited by United States law.

The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished- rights reserved under the copyright laws of the United States.

16. Developer Name and Address. If you have any questions, complaints, or claims regarding this Agreement or the Licensed Application, you may contact our App License Administrator.

Mac App Store License Administrator. TechSmith Corporation
2405 Woodlake Drive
Okemos, MI 48864
Tel 517-381-2300
apps@techsmith.com

17. Third Party Beneficiary and TechSmith and Third Party Terms. You acknowledge and agree that Apple and its subsidiaries as well as other applicable suppliers, vendors, licensors, and licensees are third party beneficiaries of this License Agreement, and that, upon your acceptance of the terms and conditions of this License Agreement, Apple as well as other applicable suppliers, vendors, licensors, and licensees will have the right (and will be deemed to have accepted the right) to enforce this License Agreement against you as a third party provider. Portions of the Licensed Application may utilize or include other TechSmith products, services and web sites and third party software, applications, credential systems, components, content or services and other copyrighted material and services. Acknowledgments, licensing terms, terms of use or service, and disclaimers for such other TechSmith products, services, and web sites and third party software, applications, credential systems, components, content or services and other copyrighted material are contained in the electronic documentation for the Licensed Application or may otherwise accompany the same, and your use of other TechSmith products, services, and web sites or third party software, applications, credential systems, components, content or services and other copyrighted material is governed by their respective terms.

18. Injunctive Relief. You acknowledge and agree that any use of the Licensed Application in breach of this Agreement is likely to cause TechSmith irreparable harm for which damages will not be an adequate remedy, and that TechSmith will, therefore, be entitled to temporary, preliminary, and permanent injunctive relief in any court of competent jurisdiction to restrain such breach, without prejudice to any other right or remedy and without posting of a bond and without proof of actual damages.

19. General. This License Agreement will be governed by and construed in accordance with the laws of the state of Michigan, U.S.A. without regard to or application of conflicts of law rules or principles. You hereby consent to the non-exclusive personal jurisdiction and venue in the state and federal courts located or have a presence in Ingham County, Michigan, U.S.A. for any lawsuit arising from or related to this License Agreement. This License Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of this License Agreement is solely for accommodation purposes. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this License Agreement or any rights granted hereunder, by operation of laws or otherwise, without TechSmith’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this License Agreement, the exercise by either party of any of its remedies under this License Agreement will be without prejudice to its other remedies under this License Agreement or otherwise. The failure by either party to enforce any provision of this License Agreement will not constitute a waiver of future enforcement of that or any other provision. TechSmith reserves the right to amend this License Agreement from time to time upon TechSmith’s release of a new version of the Licensed Application. You must accept any newly amended terms and conditions of this License Agreement before downloading, installing, copying or otherwise using the newly released Licensed Application. Except as otherwise provided in this section 19 of this License Agreement, this License Agreement may not be amended, altered, or any of its provisions waived on behalf of either party, except in writing executed by both parties' duly authorized agent. Notwithstanding the provisions of this section 19, TechSmith may amend its Privacy Policy at any time by posting a new version of its Privacy Policy at its web site along with an outline of the changes to its Privacy Policy. If any provision of this License Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This License Agreement and the terms and conditions incorporated herein by reference are the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, and understandings or communications between the parties, oral or written, regarding its subject matter, unless you and TechSmith have executed a separate agreement.

20. Open Source Software. Certain items of third-party code provided by TechSmith with the Licensed Application (“Open Source Software”) may be subject to certain “open source” or “free software” licenses. This Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this License Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software.

AS STATED ABOVE, BY  DOWNLOADING, INSTALLING, EXECUTING, OR OTHER WISE USING IN ANY MANNER THE LICENSED APPLICATION, INDICATES YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT AND YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AS A LICENSEE.

You acknowledge and agree that if any of the terms and conditions of this License Agreement are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement, the terms and conditions of Apple’s instructions for Minimum Terms of Developer’s End User License Agreement shall apply.

TechSmith and TechSmith AppShow are marks or registered trademarks of TechSmith Corporation in the United States and/or other countries. All other trademarks are the property of their respective owners; specifically Mac is a mark of Apple, Inc.