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License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE D’ART SOFTWARE. BY INSTALLING, COPYING OR OTHERWISE USING THE D’ART SOFTWARE, YOU (“CLIENT”) ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL OR USE THE SOFTWARE.

1. General.
The software and documentation accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the “d’Art Software”) are licensed, not sold, to Client by d’Art Inc. (“d’Art”) for use only under the terms of this License, and d’Art reserves all rights not expressly granted to Client. The rights granted herein are limited to d’Art’s and its licensors’ intellectual property rights in the d’Art Software and do not include any other patents or intellectual property rights. The terms of this License will govern any software upgrades provided by d’Art that replace and/or supplement the original d’Art Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

2. Permitted License Uses and Restrictions.
The d’Art Software is and shall remain the property of d’Art. d’Art grants to Client a perpetual, non-exclusive, royalty free license (or, in the case of third-party software, sublicense where allowable) for Client or its agents or assigns to use, modify, copy, transfer and maintain the d’Art Software for the sole purpose of the operation and maintenance, and updating of the Client website. Client may alter, modify, or extend the d'Art Software for its own use, or commission a third-party to perform modifications for Client, but Client may not re-brand, resell, redistribute or transfer the modified or derivative version without prior written consent from d'Art. Portions of the d'Art Software may not be extracted and used in other programs without prior written consent from d'Art. Modifications to the d'Art Software, or installation of the d'Art Software, by any person or entity other than d'Art shall relieve d'Art from any and legal obligations to repair or support the software. Further, modified versions of the d'Art Software shall remain protected under this License Agreement. This License allows Client to install and use one copy of the d’Art Software on a single website at a time. This License does not allow the d’Art Software to exist on more than one website at a time. Client may allow an unlimited number of users to access or otherwise utilize the services or functionality of the installed software. Client may make one copy of the d’Art Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Except as and only to the extent expressly permitted in this License or by applicable law, Client may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the d’Art Software or any part thereof.

3. Transfer.
Client may not rent, lease, lend or sublicense the d’Art Software. Client may, however, make a one-time permanent transfer of all of Client’s License rights to the d’Art Software to another party, provided that: (a) the transfer must include all of the d’Art Software, including all its component parts, original media, printed materials and this License; (b) Client does not retain any copies of the d’Art Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the d’Art Software reads and agrees to accept the terms and conditions of this License. All components of the d’Art Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications.

4. Termination.
This License is effective until terminated. Client’s rights under this License will terminate automatically without notice from d’Art if Client fails to comply with any term(s) of this License. Upon the termination of this License, Client shall cease all use of the d’Art Software and destroy all copies, full or partial, of the d’Art Software.

5. Disclaimer of Warranties.
CLIENT EXPRESSLY ACKNOWLEDGE AND AGREES THAT USE OF THE D’ART SOFTWARE IS AT CLIENT’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CLIENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE D’ART SOFTWARE IS PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND D’ART AND D’ART’S LICENSORS (COLLECTIVELY REFERRED TO AS “D’ART” FOR THE PURPOSES OF SECTIONS 5 AND 6) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE D’ART SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. D’ART DOES NOT WARRANT AGAINST INTERFERENCE WITH CLIENT’S ENJOYMENT OF THE D’ART SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE D’ART SOFTWARE WILL MEET CLIENT’S REQUIREMENTS, THAT THE OPERATION OF THE D’ART SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE D’ART SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY D’ART OR A D’ART AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE D’ART SOFTWARE PROVE DEFECTIVE, CLIENT ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO CLIENT.

6. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL D’ART BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CLIENT’S USE OR INABILITY TO USE THE D’ART SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF D’ART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CLIENT. In no event shall d’Art’s total liability to Client for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

7. 3rd Party Services.
The d’Art Software may make use of, or have the ability to make use of, link to, or integrate with 3rd party content or services. The availability of the content or services is at the sole discretion of the 3rd party service providers and may be subject to usage agreements and other restrictions. Client agrees to indemnify and save harmless d’Art and its licensors from all claims, damages, and expenses of whatever nature that may be made against d’Art and its licensors by 3rd party content and service providers as a result of Client’s use of the Software. Licenses to 3rd party products integrated with d’Art’s software are issued to d’Art’s server, where the Client’s program is hosted, and are not transferable to Client. These products are identified in Appendix C.

8. Controlling Law and Severability.
This License will be governed by and construed in accordance with the laws of the State of New York, as applied to agreements entered into and to be performed entirely within New York between New York residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. Any claim in connection with, arising under, or in any way whatsoever relating to (i) this License, (ii) the relationship created by this License, (iii) the relationship created by the underlying Agreement to which this License is attached as an exhibit, and (iv) the use or attempted use of the software, or (iv) the applicability and scope of this License shall be brought and maintained in a court sitting in the City of New York, State of New York, United States of America. In any such action, the prevailing party shall be entitled to reasonable attorney’s fees and expenses.

9. Complete Agreement.
This License constitutes the entire agreement between the parties with respect to the use of the d’Art Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, any proposal or prior agreement, oral or written, and any other communication relating to the subject matter of this license. Any conflict between the terms of this License Agreement and any Purchase Order, invoice, or representation shall be resolved in favor of the terms of this License Agreement. In the event that any clause or portion of any such clause is declared invalid for any reason, such finding shall not affect the enforceability of the remaining portions of this License and the unenforceable clause shall be severed from this license. No amendment to or modification of this License will be binding unless in writing and signed by d’Art.

10. Binding Effect.
This License shall be binding on and shall inure to the benefit of the parties hereto and their respective legal representatives, heirs, successors and assigns.

11. Construction and Section Titles.
This License shall be construed reasonably and not against any particular party. The titles given to the paragraphs and subparagraphs of this License are for the convenience of the parties. This License shall be construed without regard to such titles.
 
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