USER LICENSE AGREEMENT
Stitchitize Embroidery Design Service, ("Stitchitize") is providing you a limited license to use the embroidery design files (the "Design Files") subject to the terms of this USER LICENSE AGREEMENT (this "Agreement").
IMPORTANT - PLEASE READ CAREFULLY
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND STITCHITIZE FOR USE OF THE DESIGN FILES FOR WHICH YOU HAVE PAID THE DESIGNATED LICENSE FEE. BY PURCHASING THE DESIGN(S) YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE BOUND BY THEM. YOU ALSO ACKNOWLEDGE THAT THIS AGREEMENT IS THE ONLY AGREEMENT BETWEEN YOU AND STITCHITIZE REGARDING THIS DESIGN. IF YOU DO NOT AGREE TO THESE TERMS, STITCHITIZE IS UNWILLING TO GRANT YOU THIS LICENSE.
1. LICENSE AND SCOPE. The Design Files are licensed, not sold, to you. You have a nonexclusive, nontransferable, limited license to use the Design Files. You agree that you will not distribute or otherwise provide the Design Files to any third party. You further agree to keep confidential and use your best efforts to prevent and protect the Design Files from unauthorized disclosure or use, including, but not limited to, taking necessary steps to prevent use of the Design Files by individuals not specifically licensed to use the Design Files under this Agreement. Stitchitize reserves all rights, title and interest to the Design Files not expressly granted to you under this Agreement.
2. RESTRICTIONS: You are not permitted to sell, rent, lease, lend or otherwise transfer the Design Files on a permanent or temporary basis without the written consent of Stitchitize. You are not permitted, nor can you allow any third party, to remove any proprietary notices, labels or trademarks on the Design Files. You are not permitted, nor can you allow any third party, to use Stitchitize's or Stitchitize's suppliers' names, logos, or trademarks in any manner including, without limitation, in your advertising or marketing materials, except to the minimum extent necessary to affix the appropriate copyright or other proprietary notices, if applicable. You may not sublicense the Design Files, or assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason. Any attempt to make any such sublicense, assignment, delegation or other transfer by you shall be void and shall void your rights to use the license granted by this Agreement.
3. OWNERSHIP & COPYRIGHT: All title, ownership rights, and intellectual property rights in and to the Design Files and any copies thereof are vested in and shall remain in Stitchitize and/or its suppliers. You agree that you neither own nor hereby acquire any claim or right of ownership to the Design Files or to any related patents, copyrights, trademarks or other intellectual property. This license is not a sale of the original or any subsequent copy. The Design Files are protected by the copyright laws and other intellectual property laws of Canada, the United States and international treaties. You may not copy the Design Files, except to transfer the embroidery file to your embroidery machine. You may also make one copy of a Design File for back-up or archival purposes only.
4. PRODUCTS CREATED FROM DESIGN: You are not restricted from selling or distributing embroidered products created from Design Files provided that the context in which the design is used does not infringe on the intellectual property rights of others. You acknowledge that copyright laws, trademark laws, and other intellectual property laws may prevent the use of any products created with the Design Files if such products copy, imitate, mimic, emulate, approximate, depict or otherwise infringe on designs, images, or other protected works in Canada or other countries. You acknowledge and agree that it is your responsibility to ensure that products created with the Design Files do not infringe on the intellectual property rights of third parties not associated with Stitchitize and its suppliers.
5. TERM AND TERMINATION: The license is effective until terminated. You may terminate this license at any time by permanently deleting all of the downloaded Design Files. This license automatically terminates if you fail to comply with its terms and conditions. You agree that, upon such termination, you will destroy (or permanently erase) all copies of the Design Files. Stitchitize may terminate this license at any time by providing notice by fax, email, or letter and refunding the purchase price of the design. If the design was purchased as part of a pack, a pro-rata refund will be calculated based on the price of the pack and the number of designs in the pack.
6. NO WARRANTY: TO THE MAXIMUM EXTENT PROVIDED UNDER APPLICABLE LAW, THE DESIGN FILES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. Such jurisdictions give you specific legal rights and you may also have other rights, which vary from jurisdiction to jurisdiction.
7. LIMITATION OF REMEDIES AND LIABILITIES: TO THE MAXIMUM EXTENT PROVIDED UNDER APPLICABLE LAW, IN NO EVENT WILL STITCHITIZE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF STITCHITIZE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PROVIDED UNDER APPLICABLE LAW, STITCHITIZE'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO STITCHITIZE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
Some jurisdictions do not allow the exclusion or limitations of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
8. LICENSEE INDEMNIFICATION: You agree that you shall indemnify and hold Stitchitize, and its officers, directors, employees, and suppliers (each a "Stitchitize Indemnitee") harmless from any and all liabilities, losses, costs, damages and expenses, including, without limitation, reasonable attorneys' fees, that a Stitchitize Indemnitee suffers or incurs in connection with any claim, action, demand, or other legal action brought by a third party arising from or relating to: (i) any breach by you of this Agreement; or (ii) any claims related to products created by you in connection with your use of the Design Files.
9. VIRUSES: In the unlikely event a design obtained directly from Stitchitize contains a virus, Stitchitize agrees to either replace the affected design or refund the purchase price associated with the affected design. Stitchitize's liability is limited to replacement or refund of only the virus-infected design downloaded from Stitchitize and does not include any costs associated with repairing or replacing any computer components, hardware, additional software, computer files or any other costs associated with repairing, replacing or removing virus-infected files from your computer. Stitchitize will cover this liability only if the virus resulted through no fault of your own from purchases made through Stitchitize while using our secure server.
10. GENERAL PROVISIONS: Stitchitize may freely assign this Agreement, or delegate its obligations under this Agreement, in whole or in part, to any third party. This Agreement will be governed by the laws of the Province of Saskatchewan, Canada without regard to conflicts of law principles that would require the application of the laws of any other jurisdiction. You must bring any action or proceeding arising from or relating to this Agreement in the Saskatchewan Court of Queen's Bench, Judicial District of Saskatoon, and you irrevocably submit to the jurisdiction and venue of any such court in any such action or proceeding. The Parties' rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its reasonable attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. The section headings used in this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including, but not limited to." This Agreement constitutes the complete and entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both Parties.