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PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THIS SOFTWARE, YOU (HEREINAFTER “CUSTOMER”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS ON LICENSE RESTRICTIONS IN SECTION 4, LIMITED WARRANTY IN SECTIONS 6 AND 7, LIMITATION OF LIABILITY IN SECTION 8, AND SPECIFIC PROVISIONS AND EXCEPTIONS IN SECTION 16. CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. THIS AGREEMENT IS ENFORCEABLE AGAINST CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SOFTWARE.
Customer may have another written agreement directly with Thinking Strings (e.g., a volume license agreement) that supplements or supersedes all or portions of this agreement. The Software is LICENSED, NOT SOLD, only in accordance with the terms of this agreement. Use of some Thinking Strings and some non-Thinking Strings materials and services included in or accessed through the Software may be subject to additional terms and conditions. Notices about non-Thinking Strings materials are available at https://thinkingstrings.com.
The Software may cause Customer’s Computer to AUTOMATICALLY CONNECT TO THE INTERNET. The Software may also require activation or registration. Additional information on activation, Internet connectivity, and privacy is available in Sections 14 and 16.
1.1 “Thinking Strings” means Thinking Strings, LLC, a Massachusetts Limited Liability Company, P.O. Box 233 West Stockbridge, MA 01266.
1.2 “Thinking Strings Runtime(s)” means Interactive Explorations®, Revealing® Archaeology, Revealing® World Religions, Revealing® Eastern Religions, Revealing® Western Religions, Revealing® Applied Ethics, Revealing® Philosophy, Revealing® Criminology, or Revealing® Religion.
1.3 “Compatible Computer” means a Computer with the recommended operating system and hardware configuration as stated in the Documentation.
1.4 “Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications.
1.5 “Customer” means you and any legal entity that obtained the Software and on whose behalf it is used; for example, and as applicable, your employer.
1.6 “Internal Network” means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations, and similar organizations.
1.7 “Output File” means an output file Customer creates with the Software.
1.8 “Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by Thinking Strings.
1.9 “Software” means (a) all of the information with which this agreement is provided, including but not limited to: (i) all software files and other computer information; (ii) any proprietary scripting logic embedded within exported file formats or used in an Thinking Strings Online Service; (iii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with Thinking Strings software or made available by Thinking Strings on Thinking Strings’s website for use with the Thinking Strings software and not obtained from Thinking Strings through a separate service (unless otherwise noted within that service) or from another party (“Content Files”); (iv) related explanatory written materials and files (“Documentation”); and (v) fonts; and (b) any modified versions and copies of, and upgrades, updates, and additions to, such information, provided to Customer by Thinking Strings at any time, to the extent not provided under separate terms (collectively, “Updates”).
2. Software License; Membership.
2.1 Software License. This Section 2.1 applies to Customers who have purchased a license to the Software.
2.1.1 License Grant. Subject to Customer’s continuous compliance with this Agreement and payment of the applicable license fees, Thinking Strings grants Customer a non-exclusive and limited license to install and use the Software (a) in the territory or region where Customer obtains the Software from Thinking Strings or Thinking Strings’s authorized reseller or as otherwise stated in the Documentation (“Territory”), (b) during the term of such license (“License Term”), (c) within the scope of the License Type and on the Permitted Number of Customer’s Compatible Computers as specified in the Documentation, and (d) in a manner consistent with the terms of this Agreement and applicable Documentation. Unless otherwise defined in this Agreement, in the applicable Documentation, or at the time of purchase, License Term shall be perpetual. Upon the expiration or termination of the License Term, some or all of the Software may cease to operate without prior notice. Upon expiration or termination of the License Term, Customer may not use the Software unless Customer has renewed the license. The license granted herein is supplemented by specific provisions in Section 16 as related to the use of certain applicable products and components that may be included with the Software.
2.1.2 License Types.
220.127.116.11 Non-Serialized Software. The Software, or portions of the Software, that are provided without a serial number during the License Term may only be installed and used on any number of Compatible Computers as part of an organizational deployment plan during the License Term for demonstration, evaluation, and training purposes only, and only if any Output Files or other materials produced through such use are used only for internal, non-commercial, and non-production purposes. THE NON-SERIALIZED SOFTWARE IS PROVIDED “AS-IS”. ACCESS TO AND USE OF ANY OUTPUT FILES CREATED WITH SUCH NON-SERIALIZED SOFTWARE IS ENTIRELY AT CUSTOMER’S OWN RISK.
18.104.22.168 Evaluation Software. The Software, or portions of the Software, that are provided with a serial number designated for “evaluation purposes” or other similar designation (such as Software or a serial number supplied as “EVAL” under a separate agreement) (“Evaluation Software”) may only be installed and used on Permitted Number of Compatible Computers during the License Term for demonstration, evaluation, and training purposes only, and only if any Output Files or other materials produced through such use are used only for internal, non-commercial, and non-production purposes. THE EVALUATION SOFTWARE IS PROVIDED “AS IS”. ACCESS TO AND USE OF ANY OUTPUT FILES CREATED WITH SUCH EVALUATION SOFTWARE IS ENTIRELY AT CUSTOMER’S OWN RISK.
22.214.171.124 Subscription Edition. For the Software available on a subscription-basis (“Subscription Edition”), Customer may install and use the Subscription Edition only on the Permitted Number of Compatible Computer during the License Term. Subject to the Permitted Number of Computers for the Subscription Edition, Thinking Strings may allow Customer to install and use the most recent prior version of the Subscription Edition and the current version of the Subscription Edition on the same Computer during the License Term. Customer agrees that Thinking Strings may change the type of Software (such as specific components, versions, platforms, languages, etc.) included in the Subscription Edition at any time and shall not be liable to Customer whatsoever for such change. Ongoing access to a Subscription Edition requires: (a) a recurring Internet connection to activate, renew, and validate the license, (b) Thinking Strings or its authorized reseller’s receipt of recurring subscription payments, and (c) Customer’s agreement to subscription terms and other additional terms and conditions that are available at https://thinkingstrings.com or at the time of purchase. If Thinking Strings does not receive the recurring subscription payment or cannot validate the license periodically, then the Software may become inactive without additional notice until Thinking Strings receives the payment or validates the license.
2.1.3 Portable or Home Computer Use. Subject to the restrictions set forth in Section 2.1.4, the primary user of the Computer on which the Software is installed under Section 2.1 (“Primary User”) may install a second copy of the Software for his or her exclusive use on either a portable Computer or a Computer located at his or her home, provided that the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer.
2.1.4 Restrictions on Secondary Use by Volume Licensees. If the Software was obtained under an Thinking Strings volume license program or agreement (such as Thinking Strings Volume Licensing) by any licensee other than an educational volume licensee, then the second copy of the Software made under Section 2.1.3 must be used solely for the benefit and business of that volume licensee.
2.1.5 Dual Boot Platform. The Software is licensed for use on a specific operating system platform. Customer must purchase a separate license for use of the Software on each operating system platform. By way of example, if Customer desires to install the Software on both the Mac OS and Windows operating system platforms on a device that runs both of those platforms (i.e., a dual boot machine), then Customer must first obtain two separate licenses for the Software. This is true even if two versions of the Software, each designed for a different operating system platform, are delivered to Customer on the same media.
2.1.6 Distribution from a Server. As permitted by the Documentation, Customer may copy an image of the Software onto a Computer file server within Customer’s Internal Network (“Server”) for the purpose of downloading and installing the Software onto Computers within the same Internal Network for use only as permitted by this Section 2.
2.1.7 Server Use.
126.96.36.199 As permitted in a separate purchasing document or Documentation and subject to license restrictions stated in this Agreement, Customer may install the Software on a Server only for the purpose of allowing an individual from a Computer within the same Internal Network (“Network User”) to access and use the Software. The Network User who has access to such Software on the Server is referred to as “Server Software User”. The total number of Server Software Users (not the concurrent number of users) may not exceed the Permitted Number. By way of example, if Customer has purchased 10 licenses of Software (Permitted Number is 10) and Customer elects to install the Software on a Server, then Customer can only allow up to 10 Server Software Users the access to the Software (even though Customer may have more than 10 Network Users or fewer than 10 concurrent users of the Software).
188.8.131.52 For clarification and without limitation, the foregoing does not permit Customer to install or access (either directly or through commands, data, or instructions) the Software: (a) from or to a Computer not part of Customer’s Internal Network; (b) for enabling web hosted workgroups or web hosted services available to the public; (c) by any individual or entity to use, download, copy, or otherwise benefit from the functionality of the Software unless licensed to do so by Thinking Strings; (d) as a component of a system, workflow or service accessible by more than the Permitted Number of users; or (e) for operations not initiated by an individual user (e.g., automated server processing).
2.2 Membership. This Section 2.2 applies to Customers who have purchased a membership-based license or service.
2.2.2 Software License Related to the Membership. Subject to Customer’s continuous compliance with this Agreement and payment of the applicable membership fees, if any, Thinking Strings grants Customer a non-exclusive and limited license to install and use the Software: (a) in the Territory, (b) during the period that the Membership is current and active (“Membership Term”) and (c) in a manner consistent with the terms of this Agreement and applicable Documentation. Upon the expiration or termination of the Membership Term, (x) some or all of the Software may cease to operate without prior notice and (y) Customer may not use the Software unless Customer has renewed the membership. All terms related to the specific Software as stated in this Agreement shall remain effective and continue to apply to Customer and its use of such Software.
2.2.3 Restrictions. Customer agrees to the following additional terms and restrictions related to the Membership: (a) Thinking Strings may change the type of Software (such as specific products, components, versions, platforms, languages, etc.) included in the Membership at any time and shall not be liable to Customer whatsoever for such change; (b) Customer may be required to connect to the Internet and log in at any time during the Membership Term; (c) Software may automatically connect to the Internet to verify Customer’s Membership without notice at any time; and (d) Customer may not enable or allow others to use the Software as Customer.
2.3 Content Files. Unless stated otherwise in the “Read-Me” files, Documentation, or other license(s) associated with the Content Files, Customer may use, display, modify, reproduce, and distribute any of the Content Files. However, Customer may not distribute the Content Files on a stand-alone basis (i.e., in circumstances in which the Content Files constitute the primary value of the product being distributed), and Customer may not claim any trademark rights in the Content Files or derivative works thereof. Nothing stated herein shall affect the ownership of the Software as stated in Section 3.
2.4 Sample Application Code. Customer may modify the source code form of those portions of the Software programs that are expressly identified as sample code, sample application code, code snippets, ActionScript class files, or sample components (each, “Sample Application Code”) in the accompanying Documentation solely for the purposes of designing, developing, and testing websites and applications developed using Thinking Strings software programs; provided, however, Customer is permitted to copy and distribute the Sample Application Code (modified or unmodified) only if all of the following conditions are met: (a) Customer distributes only the compiled object code versions of the Sample Application Code with its application; (b) Customer does not include the Sample Application Code in any product or application designed for website development; and (c) Customer does not use the Thinking Strings name, logos, icons, or other Thinking Strings trademarks to market its application. Customer agrees to indemnify, hold harmless, and defend Thinking Strings from and against any loss, damage, claims, or lawsuits, including attorney’s fees, that arise or result from the use or distribution of its application.
2.5 Documentation Copies. Customer may make copies of the Documentation for its own internal use in connection with use of the Software in accordance with this agreement, but no more than the amount reasonably necessary.
3. Intellectual Property Ownership.
The Software and any authorized copies that Customer makes are the intellectual property of and are owned by Thinking Strings, LLC and its suppliers. The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of Thinking Strings, LLC and its suppliers. The Software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant Customer any intellectual property rights in the Software. All rights not expressly granted are reserved by Thinking Strings and its suppliers.
4. Restrictions and Requirements.
4.1 Proprietary Notices. Any permitted copy of the Software (including without limitation Documentation) that Customer makes must contain the same copyright and other proprietary notices that appear on or in the Software.
4.2 Use Obligations. Customer agrees that it will not use the Software other than as permitted by this agreement and that it will not use the Software in a manner inconsistent with its design or Documentation.
4.3 No Modifications. Except as expressly permitted in Sections 2 or 16, Customer may not modify, port, adapt, or translate the Software.
4.4 No Reverse Engineering. Except as otherwise expressly permitted in Section 16.1, Customer will not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software.
4.5 No Unbundling. The Software may include various applications and components, may allow access to different Thinking Strings Online Services, may support multiple platforms and languages, and may be provided to Customer on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Customer as a single product to be used as a single product on Computers as permitted herein. Unless otherwise permitted in the Documentation, Customer is not required to install all component parts of the Software, but Customer may not unbundle the component parts of the Software for use on different Computers.
4.6 No Transfer.
4.6.1 CUSTOMER WILL NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN, OR TRANSFER ITS RIGHTS IN THE SOFTWARE (INCLUDING WITHOUT LIMITATION, SOFTWARE OBTAINED THROUGH A WEB DOWNLOAD), OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN.
4.6.2 Except with regard to Educational Software Products (as defined in Section 16.3), Pre-release Software (as defined in Section 16.2), Evaluation Software, not-for-resale copies of the Software, or Software obtained through an Thinking Strings volume license program and further subject to Section 4.6.3, Customer may permanently transfer all its rights to use the Software to another individual or legal entity provided that: (a) Customer also transfers (i) this agreement, (ii) the serial number(s), the Software affixed to media provided by Thinking Strings or its authorized distributor, and all other software or hardware bundled, packaged, or pre-installed with the Software, including all copies, Updates, and Prior Versions (as defined in Section 5, below), and (iii) all copies of font software to such individual or entity; (b) Customer retains no Updates, Prior Versions, or copies, including backups and copies stored on a Computer; and (c) the receiving party accepts the terms and conditions of this agreement and any other terms and conditions under which Customer purchased a valid license to the Software. Additional information on transferring volume licensed software is available at https://thinkingstrings.com.
4.6.3 If the Software requires recurring activation or registration and Thinking Strings grants Customer’s request to be exempted from the requirement of such recurring activation or registration, then in addition to the restrictions set forth in the Activation Terms (as defined in Section 14.3), then the right to permanently transfer as stated in Section 4.6.2 shall terminate immediately upon the grant of such request.
4.7 No Service Bureau. Customer will not use or offer the Software on a service bureau basis. Section 16.6.3 provides a limited exception for font software only.
4.8 Thinking Strings Runtime Restrictions. Customer will not use Thinking Strings Runtimes on any non-PC device or with any embedded or device version of any operating system. For the avoidance of doubt, and by example only, Customer may not use Thinking Strings Runtimes on any (a) mobile device, set top box, handheld, phone, game console, TV, DVD player, media center (other than with Windows XP Media Center Edition and its successors), electronic billboard or other digital signage, Internet appliance or other Internet-connected device, PDA, medical device, ATM, telematic device, gaming machine, home automation system, kiosk, remote control device, or any other consumer electronics device; (b) operator-based mobile, cable, satellite, or television system; or (c) other closed system device. Additional information on licensing Thinking Strings Runtimes is available at https://thinkingstrings.com.
4.9 Territory. Customer shall only use the Software and access the Thinking Strings Online Services in the Territory and in a manner consistent with the activation policy described at https://thinkingstrings.com. Thinking Strings may terminate the license granted herein or suspend the Membership or access to the Thinking Strings Online Services if Thinking Strings determines that Customer is using the Software or Thinking Strings Online Services outside the Territory.
If the Software is an Update to a prior version of Thinking Strings software (the “Prior Version”), then Customer’s use of this Update is conditional upon its retention of the Prior Version. Therefore, if Customer validly transfers this Update pursuant to Section 4.6, the Customer must transfer the Prior Version along with it. If Customer wishes to use this Update in addition to the Prior Version, then Customer may only do so on the same Computer on which it has installed and is using the Prior Version. Any obligations that Thinking Strings may have to support Prior Versions during the License Term may end upon the availability of this Update. No other use of the Update is permitted. Additional Updates may be licensed to Customer by Thinking Strings with additional or different terms.
6. Limited Warranty.
Except as otherwise stated in a separate agreement between Thinking Strings and a Software licensee, Thinking Strings warrants to the individual or entity that first purchases a license for the Software for use pursuant to the terms of this agreement that the Software will perform substantially in accordance with the corresponding user manual for the Software for the shorter period of (a) the ninety (90) day period or (b) License Term following receipt of the Software (“Warranty Period”) when used on the Compatible Computer. Non-substantial variation of performance from the user manual does not establish a warranty right. This limited warranty does not apply to the following, which are made available AS-IS and without warranty from Thinking Strings: (i) patches; (ii) font software; (iii) Pre-release Software, trial, starter, evaluation, product sampler, Evaluation Software, and not-for-resale copies of the Software; (iv) websites, Thinking Strings Online Services; and Third Party Online Services; (v) Certified Document Services (see Section 16); and (vi) any software made available by Thinking Strings for free via web download from an Thinking Strings website. All warranty claims must be made, along with proof of purchase, to the Thinking Strings Customer Support Department within such Warranty Period. Additional information on warranty claims is available at https://thinkingstrings.com. The entire liability of Thinking Strings and its affiliates related to such warranty claim and Customer’s sole and exclusive remedy under any warranty will be limited to either, at Thinking Strings’s option, support of the Software based on the warranty claim, replacement of the Software, or, if support or replacement is not practicable at Thinking Strings’s determination, refund of the license fee Customer paid for the Software (if any). THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE ADDITIONAL RIGHTS UNDER LAW WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. Thinking Strings DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. Please see Section 16 for jurisdiction-specific provisions or contact the Thinking Strings Customer Support Department.
THE LIMITED WARRANTY IN SECTION 6 AND ANY STATUTORY WARRANTY AND REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW ARE THE ONLY WARRANTIES AND EXCLUSIVE REMEDIES APPLICABLE TO THE SOFTWARE. OTHER THAN THOSE OFFERED AND STATUTORY WARRANTIES AND REMEDIES, Thinking Strings, ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES (DEFINED BELOW) DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, THE SOFTWARE AND ACCESS TO ANY WEBSITES, Thinking Strings OR THIRD PARTY ONLINE SERVICES, AND CERTIFICATE AUTHORITY SERVICES ARE PROVIDED AS-IS AND WITH ALL FAULTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. Thinking Strings DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. The provisions of Sections 7 and Section 8 will survive the termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the Software after termination of this agreement.
8. Limitation of Liability.
EXCEPT FOR THE EXCLUSIVE REMEDY OFFERED BY Thinking Strings ABOVE AND ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, Thinking Strings, ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF AN Thinking Strings REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS. IN ANY EVENT, Thinking Strings’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this agreement limits Thinking Strings’s liability to Customer in the event of death or personal injury resulting from Thinking Strings’s negligence or for the tort of deceit (fraud). Thinking Strings is acting on behalf of its affiliates, suppliers, and Certificate Authorities for the purpose of disclaiming, excluding and limiting obligations, warranties, and liability, but in no other respects and for no other purpose.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER’S JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. Thinking Strings DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. SEE SECTION 16 FOR JURISDICTION-SPECIFIC STATEMENTS.
9. Export Rules.
Customer acknowledges that the Software is subject to the U.S. Export Administration Regulations (the “EAR”) and that Customer will comply with the EAR. Customer will not export or re-export the Software, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions (including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria), (b) any end user whom Customer knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems, or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local laws in Customer’s jurisdiction which may impact its right to import, export or use the Software. If Thinking Strings has knowledge that a violation has occurred, Thinking Strings may be prohibited from providing maintenance and support for the Software.
10. Governing Law.
If Customer is a consumer who uses the Software for only personal non-business purposes, then this agreement will be governed by the laws of the jurisdiction which Customer purchased the license to use the Software. If Customer is not such a consumer, this agreement will be governed by and construed in accordance with the substantive laws in force in: (a) the State of California, if a license to the Software is obtained when Customer is in the United States, Canada, or Mexico; (b) Japan, if a license to the Software is obtained when Customer is in Japan; (c) Singapore, if a license to the Software is obtained when Customer is in a member state of the Association of Southeast Asian Nations, Mainland China, Hong Kong S.A.R., Macau S.A.R., Taiwan, or the Republic of Korea; or (d) England and Wales, if a license to the Software is obtained when Customer is in any jurisdiction not described above. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England and Wales applies, shall each have non-exclusive jurisdiction over all disputes relating to this agreement. When Singapore law applies, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be, LLC by reference into this section. There shall be one arbitrator, selected jointly by the parties. If the arbitrator is not selected within thirty (30) days of the written demand by a party to submit to arbitration, the Chairman of the SIAC shall make the selection. The language of the arbitration shall be English. Notwithstanding any provision in this agreement, Thinking Strings or Customer may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies. This agreement will not be governed by the following, the application of which is hereby expressly excluded: (x) the conflict of law rules of any jurisdiction, (y) the United Nations Convention on Contracts for the International Sale of Goods, and (z) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
11. General Provisions.
If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms. This agreement may only be modified in writing, signed by an authorized officer of Thinking Strings. The English version of this agreement will be the version used when interpreting or construing this agreement. This is the entire agreement between Thinking Strings and Customer relating to the Software and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Software.
12. Notice to U.S. Government End Users.
12.1 U.S. Government Licensing of Thinking Strings Technology. Customer agrees that when licensing Thinking Strings Software for acquisition by the U.S. Government, or any contractor therefore, Customer will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227.7202-1 and 227.7202-4 (for the Department of Defense). For U.S. Government End Users, Thinking Strings agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence will be, LLC by reference into this agreement.
12.2 Commercial Items. For U.S. Government End Users, Software is a “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 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.
13. Compliance with Licenses.
If Customer is a business, company, or organization, Customer agrees that, in addition to any license compliance checking performed by the Software, Thinking Strings or its authorized representative have the right, no more than once every twelve (12) months, upon seven (7) business days’ prior notice to Customer, to inspect Customer’s records, systems, and facilities to verify that its use of any and all Thinking Strings software or service is in conformity with its valid licenses from Thinking Strings. For example, Thinking Strings has the right to those of Customer’s records useful to determine whether installations of the Software have been serialized, and Customer shall provide such records to Thinking Strings promptly upon request by Thinking Strings. Additionally, Customer shall provide Thinking Strings with all records and information requested by Thinking Strings in order to verify that its use of any and all Thinking Strings software is in conformity with its valid licenses from Thinking Strings within thirty (30) days of Thinking Strings’s request. Additional information on serialization is available at https://thinkingstrings.com.
14. Internet Connectivity and Privacy.
14.1 Automatic Connections to the Internet. The Software may cause Customer’s Computer, without notice, to automatically connect to the Internet and to communicate with an Thinking Strings website or Thinking Strings domain for purposes such as license validation and providing Customer with additional information, features, or functionality. Unless otherwise specified in Sections 14.2 through 14.7, the following provisions apply to all automatic Internet connections by the Software:
14.1.4 As permitted by applicable law or as consented to by Customer, Thinking Strings may (a) send Customer transactional messages to facilitate the Thinking Strings Online Service or the activation or registration of the Software or Thinking Strings Online Service, or (b) deliver in-product marketing to provide information about the Software and other Thinking Strings products and Services using information including but not limited to platform version, version of the Software, license status, and language.
14.2 Updating. The Software may cause Customer’s Computer, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to (a) check for Updates that are available for download to and installation on the Computer and (b) notify Thinking Strings of the results of installation attempts.
14.3 Activation. The Software may require Customer to (a) obtain an Thinking Strings ID, (b) activate or reactivate the Software, (c) register the software, or (d) validate the Membership. Such requirement may cause Customer’s Computer to connect to the Internet without notice on install, on launch, and on a regular basis thereafter. Once connected, the Software will collect and transmit information to Thinking Strings as further described at https://thinkingstrings.com (“Activation Terms”). Software or Customer may also receive information from Thinking Strings related to Customer’s license, subscription, or Membership. Thinking Strings may use such information to detect or prevent fraudulent or unauthorized use not in accordance with a valid license, subscription, or Membership. Failure to activate or register the Software, validate the subscription or Membership, or a determination by Thinking Strings of fraudulent or unauthorized use of the Software may result in reduced functionality, inoperability of the Software, or a termination or suspension of the subscription or Membership.
14.4 Deactivation. Customer may deactivate and uninstall the Software from its Computer in order to install and activate the Software on another Computer in accordance with this agreement (“Deactivation”) and as further described in https://thinkingstrings.com. Deactivation requires Internet connectivity.
14.5 Use of Online Services. The Software may cause Customer’s Computer, without additional notice and on an intermittent or regular basis, to automatically connect to the Internet to facilitate Customer’s access to content and services that are provided by Thinking Strings or third parties as further described in Section 16.4 (Online Services). In addition, the Software may, without additional notice, automatically connect to the Internet to update downloadable materials from these online services so as to provide immediate availability of these services even when Customer is offline.
15. Peer-to-Peer Communications.
The Software may use Customer’s connection to a local area network, without additional notice, to automatically connect to other Thinking Strings software and, in doing so, may indicate on the local area network that it is available for communication with other Thinking Strings software. These connections may transmit the IP Address of Customer’s connection to the local network.
16. Specific Provisions and Exceptions.
This section sets forth specific provisions related to certain products and components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this section is in conflict with any other term or condition in this agreement, the terms stated in this section will supersede such other term or condition.
16.1 No Prejudice; European Economic Area Provisions; Australia Mandatory Notice.
16.1.1 This agreement will not prejudice the statutory rights of any party, including those dealing as consumers. For example, for consumers in New Zealand who obtain the Software for personal, domestic, or household use (not business purposes), this agreement is subject to the Consumer Guarantees Act.
16.1.2 If Customer obtained the Software in the European Economic Area (EEA), Customer usually resides in the EEA and Customer is a consumer (that is its use of the Software is for personal, non-business related purposes), then Section 6 (Limited Warranty) does not apply to Customer’s purchase and use of the Software. Instead, Thinking Strings warrants for a period of 2 years from purchase that the Software provides the functionalities set forth in the applicable user manual (the “agreed upon functionalities”) when used on the Compatible Computer. Non-substantial variation from the agreed upon functionalities will not establish any warranty rights. THIS WARRANTY DOES NOT APPLY TO SOFTWARE THAT CUSTOMER USES ON A PRE-RELEASE, TRYOUT, STARTER, OR PRODUCT SAMPLER BASIS, OR TO FONT SOFTWARE, OR TO THE EXTENT THE SOFTWARE FAILS TO PERFORM BECAUSE IT HAS BEEN ALTERED BY CUSTOMER. To make a warranty claim, Customer must notify the Thinking Strings Customer Support Department during this 2 year period, providing details of proof of purchase of the Software. Thinking Strings will verify with Customer whether there is a defect in the Software or advise Customer that the error arises because Customer has not installed the Software correctly (in which case, Thinking Strings shall assist Customer). If there is a defect in the Software, Customer may request from Thinking Strings either a refund or a repaired or replacement copy of the Software. Requests must be accompanied by proof of purchase. In the event Customer’s warranty details are substantiated, Thinking Strings will meet Customer’s request for repaired or replacement Software, unless it is not reasonable for Thinking Strings to do so, in which case Thinking Strings will provide Customer with a refund. For warranty assistance, please contact the Thinking Strings Customer Support Department.
Please note that the provisions of Section 8 (Limitation of Liability) will continue to apply to any damages claims Customer makes in respect of its use of the Software. Nonetheless, Thinking Strings shall be liable for direct losses that are reasonably foreseeable in the event of a breach by Thinking Strings of this agreement. Customer is advised to take all reasonable measures to avoid and reduce damages, in particular by making back-up copies of the Software and its computer data.
This agreement, and in particular this Section 16.1.2, is intended to describe Customer’s rights (including its statutory rights) in the event there should be problems with its use of the Software. If Customer’s statutory rights are greater than this description, its statutory rights shall apply.
16.1.3 Nothing included in this agreement (including Section 4.4) shall limit any non-waivable right to decompile the Software that Customer may enjoy under applicable law. For example, if Customer is located in the European Union (EU), Customer may have the right upon certain conditions specified in the applicable law to decompile the Software if it is necessary to do so in order to achieve interoperability of the Software with another software program, and Customer has first asked Thinking Strings in writing to provide the information necessary to achieve such operability and Thinking Strings has not made such information available. In addition, such decompilation may only be performed by Customer or someone else entitled to use a copy of the Software on Customer’s behalf. Thinking Strings has the right to impose reasonable conditions before providing such information. Any information supplied by Thinking Strings or obtained by Customer, as permitted hereunder, may only be used by Customer for the purpose described herein and may not be disclosed to any third party or used to create any software that is substantially similar to the expression of the Software or used for any other act that infringes the copyright of Thinking Strings or its licensors.
16.1.4 If Customer obtains the Software in Australia, then the following provision shall apply, notwithstanding anything stated to the contrary in this Agreement:
16.2 Pre-release Software Additional Terms. If the Software is pre-commercial release or beta software (“Pre-release Software”), then this section applies. The Pre-release Software does not represent final product from Thinking Strings, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Thinking Strings may never commercially release the Pre-release Software. If Customer received the Pre-release Software pursuant to a separate written agreement, such as the Thinking Strings Systems, LLC License Agreement for Pre-release Software, then Customer’s use of the Software is also governed by such agreement. Customer will promptly return or destroy all copies of Pre-release Software upon the earlier of Thinking Strings’s request or upon Thinking Strings’s commercial release of such Software. CUSTOMER’S USE OF PRE-RELEASE SOFTWARE IS AT ITS OWN RISK. SEE SECTIONS 6 AND 8 FOR LIMITED WARRANTY AND LIABILITY LIMITATIONS RELATED TO PRE-RELEASE SOFTWARE.
16.4 Online Services.
16.4.2 Provided by Third Parties. The Software may facilitate Customer’s access to websites maintained by third parties offering goods, information, software, and services (“Third Party Online Services”). Examples of such Third Party Online Services might include, but are not limited to, the Kodak EasyShare Gallery service. Customer’s access to and use of any Third Party Online Services is governed by the terms, conditions, disclaimers, and notices found on such site or otherwise associated with such Third Party Online Services. Thinking Strings does not control, endorse, or accept responsibility for Third Party Online Services. Any dealings between Customer and any third party in connection with a Third Party Online Service, including such party’s privacy policies and use of Customer’s personal information, delivery of and payment for goods and services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between Customer and such third party. Third Party Online Services might not be available in all languages or to residents of all countries and Thinking Strings may, at any time and for any reason, modify or discontinue the availability of any Third Party Online Service.
16.4.3 EXCEPT AS EXPRESSLY AGREED BY Thinking Strings OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT, CUSTOMER’S USE OF Thinking Strings ONLINE SERVICES AND THIRD PARTY ONLINE SERVICES IS AT ITS OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS OF SECTIONS 7 AND 8.
16.5 Digital Certificates.
16.5.1 Use. Digital certificates are issued by third party certificate authorities, including Thinking Strings Certified Document Services (CDS) vendors listed at https://thinkingstrings.com and Thinking Strings Approved Trust List vendors (“AATL”) listed at https://thinkingstrings.com (collectively “Certificate Authorities”), or can be self-signed.
16.5.2 Terms and Conditions. Purchase, use, and reliance upon digital certificates is the responsibility of Customer and a Certificate Authority. Before Customer relies upon any certified document, digital signature, or Certificate Authority services, Customer should review the applicable terms and conditions under which the relevant Certificate Authority provides services, including, for example, any subscriber agreements, relying party agreements, certificate policies, and practice statements. See the links on https://thinkingstrings.com for information about Thinking Strings’s CDS vendors and https://thinkingstrings.com for information about AATL vendors.
16.5.3 Acknowledgement. Customer agrees that (a) the Software, due to configuration or external issues, might show a signature as valid despite the fact a digital certificate may have been revoked or expired prior to the time of verification; (b) the security or integrity of a digital certificate may be compromised due to an act or omission by the signer of the document, the applicable Certificate Authority, or any other third party; and (c) a certificate may be a self-signed certificate not provided by a Certificate Authority. CUSTOMER IS SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE. UNLESS A SEPARATE WRITTEN WARRANTY IS PROVIDED TO CUSTOMER BY A CERTIFICATE AUTHORITY, CUSTOMER’S USE OF DIGITAL CERTIFICATES IS AT ITS SOLE RISK.
16.5.4 Third-Party Beneficiaries. Customer agrees that any Certificate Authority which the Customer relies upon is a third-party beneficiary of this agreement and shall have the right to enforce this agreement in its own name as if it were Thinking Strings.
16.5.5 Indemnity. Customer agrees to hold Thinking Strings and any applicable Certificate Authority (except as expressly provided in its terms and conditions) harmless from any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys’ fees) arising out of or relating to Customer’s use of, or any reliance on, any service of such authority, including, without limitation: (a) reliance on an expired or revoked certificate; (b) improper verification of a certificate, (c) use of a certificate other than as permitted by any applicable terms and conditions, this agreement or applicable law; (d) failure to exercise reasonable judgment under the circumstances in relying on issuer services or certificates; or (e) failure to perform any of the obligations as required in the terms and conditions related to the services.
16.16 Apple. If the Software is downloaded from the Apple iTunes Application Store (“App”), then Customer acknowledges and agrees to the following additional terms: (a) Apple has no liability for the App and its content; (b) Customer’s use of the App is limited to a non-transferable license to use the App on any iPhone™, iPad™ or iPod Touch™ that Customer owns or controls as allowed by the Application Store Terms of Service; (c) Apple has no obligation whatsoever to furnish any maintenance and support services for the App; (d) to the extent permitted by applicable law, Apple has no warranty obligation to the App and Thinking Strings will be responsible for any claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty set forth in this Agreement; (e) Apple is not liable for any claims relating to the App or Customer’s possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal requirement; and (iii) consumer protection claims; (f) Apple is not liable for any third-party claims that the App infringes a third party’s intellectual property rights; and (g) Apple and its subsidiaries are third party beneficiaries of this Agreement with respect to any such App, and that Apple will have the right to enforce the Agreement against Customer as a third party beneficiary.
If you have any questions regarding this agreement or if you wish to request any information from Thinking Strings, please use the address and contact information included with this product to contact Thinking Strings.
The name of this Software, Thinking Strings, and all related titles and logos are either registered trademarks or trademarks of Thinking Strings, LLC in the United States and/or other countries. All other trademarks are the property of their respective owners.