POETIC NETWORKS LLC
STRETCHUP.AI END USER LICENSE AGREEMENT

 

 

This Agreement is made between Poetic Networks LLC (the "Licensor," “Poetic Networks”) and you (the "Licensee"). By downloading the software and by accepting the terms and conditions in the install program for the use of this software (the “Product”), you are consenting to be bound by and become a party to this agreement as the Licensee. If you do not accept the terms of this license agreement, you will not be allowed to use the StretchUp.ai software and web services.

 

DEFINITIONS

 

(a) "Software" means the computer programs and documentation to be installed and used by you.

(b) "Install" means placing the Software on a computer's hard disk, CD-ROM or other secondary storage devices.

(c) "Use" means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes.

 

INTELLECTUAL PROPERTY OWNERSHIP

 

The Licensor retains ownership in all Intellectual property rights in and to the software and all underlying technology and associated Documentations related thereto. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of the Licensor. Except as expressly provided in this EULA, Licensee is not granted any intellectual property rights over the Licensed Software.

 

If Licensee fails to get the aforementioned authorization, all the legal liabilities, including but not limited to any loss of or damage to any third party will be solely born by Licensee. You hereby authorize Poetic Networks LLC the right to use any feedback and ideas you provide in connection with your use of the software.

 

GRANT OF RIGHTS

 

Subject to the terms and conditions of this Agreement and your payment of the license fee, Licensor hereby grants you (an individual) the limited, revocable, personal, non-exclusive, and non-transferable right to download, install and activate the Software on one device solely for your personal, private and non-commercial use, except as otherwise provided in this Agreement or additional EULA. Sharing the Software with others, or allowing others to view the contents of this Software, is in violation of the License. You may not make the Software available over a network, or in any way provide the Software to multiple users, unless you have purchased a multi-user license from the Licensor in advance. Licensor reserves all rights not expressly granted to you in this Agreement.

 

LICENSE RESTRICTIONS

 

Unless as expressly authorized by the Poetic Networks in writing or otherwise permitted under applicable law, you agree not to:

 

  1. sell, resell, transfer, sublicense, or assign Your rights under this license (except as expressly provided herein);

  2. modify, adapt or create derivative works;

  3. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code;

  4. make the functionality available to third parties, whether as an application service provider, or on outsourcing, membership or subscription, rental, service bureau, cloud service, managed or hosted service, or other similar basis;

  5. use Software that is licensed for a specific device, whether physical or virtual, on another device;

  6. remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks;

  7. use the Poetic Networks Content with third-party products or service offerings that Poetic Networks has not identified as compatible with the Software, extract the Poetic Networks Content or provide such Content to a third party.

 

INCLUDED SOFTWARE

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This software includes libjpeg-turbo, for which the following license applies:

This software is based in part on the work of the independent JPEG group.

Copyright (C)2009-2020 D. R. Commander.  All Rights Reserved.

Copyright (C)2015 Viktor Szathmáry.  All Rights Reserved.

 

Redistribution and use in source and binary forms, with or without

modification, are permitted provided that the following conditions are met:

- Redistributions of source code must retain the above copyright notice,

  this list of conditions and the following disclaimer.

- Redistributions in binary form must reproduce the above copyright notice,

  this list of conditions and the following disclaimer in the documentation

  and/or other materials provided with the distribution.

- Neither the name of the libjpeg-turbo Project nor the names of its

  contributors may be used to endorse or promote products derived from this

  software without specific prior written permission.

 

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS",

AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE

IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE

ARE DISCLAIMED.  IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR CONTRIBUTORS BE

LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR

CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF

SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS

INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN

CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE)

ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE

POSSIBILITY OF SUCH DAMAGE.

 

UPDATES AND PATCHES

Poetic Networks LLC may from time to time provide patches, upgrades and updates to the software that you will be required to install in order for you to continue your use of the software or service. We also reserve the right to make updates to the software remotely without prior notification to you and you hereby consent to such remote updates.

 

Certain features or content of the Software may require payment for  activation tokens, premium services or subscription. You agree not to attempt to, and not to, control, disable, modify or remove any component of the Software license key protection system.

 

PURCHASE AND PAYMENT TERMS

 

Through the service, Poetic Networks may enable you to pay for certain features, for activating those features, or for subscriptions The payment is for the potential ability to use the service with the additional features at the time of paying.­ Pricing and terms may be amended from time to time by Poetic networks. All payments are non-refundable.

 

 Except as provided in another part of this agreement, payments under the Agreement shall be paid in United States dollars. We accept payments with PayPal, Credit Cards and Visa and Mastercard Debit Cards or such other payment method that may be made available to you.

 

All Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Licensor’s income.

Please note additional terms in our Terms and Conditions.

 

TERMINATION

Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this License or if Licensee becomes bankrupt or insolvent.

 

DISCLAIMERS AND LIMITATION OF LIABILITY

 

THE SOFTWARE IS PROVIDED TO YOU ON "AS IS" AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO, ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE.

 

LICENSOR MAKES NO WARRANTY THAT (I) THE SOFTWARE OR SERVICES WILL OPERATE PROPERLY, (II) THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR FREE OF BUGS, ERRORS, OR MALWARE (SUCH AS VIRUSES), OR (III) ANY DEFECTS IN THE SOFTWARE OR SERVICES CAN OR WILL BE CORRECTED.  THIS PARAGRAPH WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSOR SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE OR SERVICES, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

 

DAMAGE LIMITATIONS

 

FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE LICENSOR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE OR SERVICES WILL NOT EXCEED THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) TO THE LICENSOR FOR THE PARTICULAR SOFTWARE OR SERVICE TO WHICH THE LIABILITY RELATES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION.

 

INDEMNIFICATION

 

You agree to indemnify, pay the defense costs of, and hold harmless the Licensor and its respective employees, officers, directors, agents, contractors, and other representatives from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by you of this Agreement or negligence by you, (b) any act or omission by you in using the Software or Services, or (c) any claim of infringement or violation of any third-party intellectual property rights arising from the Licensor’s use of your user-generated content or Feedback.  You agree to reimburse the Licensor on demand for any defense costs incurred by the Licensor and any payments made or loss suffered by the Licensor, whether in a court judgment or settlement.

 

TERMINATION

 

The Licensor shall have the sole and exclusive right to immediately terminate this EULA and suspend your license to use the Software should you fail to perform any obligation required under this EULA, engage in activity that the Licensor deems harmful to its well-being. This EULA takes effect upon your installation of the Software and remains effective until terminated.

 

GOVERNING LAW DISPUTE RESOLUTION

 

Governing Law

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.

 

Agreement to Arbitrate

You and Poetic Networks agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services, Products or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Poetic Networks with written notice of your desire to do so by email within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”).

If you don’t provide Poetic Networks with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Poetic Networks with an Arbitration Opt-out Notice, will be the state and federal courts located in California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Poetic Networks with an Arbitration Opt-out Notice, you acknowledge and agree that you and Poetic Networks are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Poetic Networks otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms

 

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

 

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

 

Arbitration Location and Procedure

Unless you and Poetic Networks otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $5,000, then the arbitration will be conducted solely on the basis of the documents that you and Poetic Networks submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $5,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

 

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Poetic Networks will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

 

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $10,000, Poetic Networks will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

 

Changes

Notwithstanding the provisions as regards how we can make changes to this Terms, if Poetic Networks changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Poetic Networks’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Poetic Networks in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

 

Class Action Waiver

To the maximum extent permitted by applicable law, you and Poetic Networks agree to only bring Disputes in an individual capacity and shall not:

 

  1. seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or

  2. consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to this Agreement and all other actions or arbitrations.

 

ENTIRE AGREEMENT

 

This License Agreement together with all schedules referred to in this Agreement, all of which are incorporated herein by reference, constitutes the sole and entire agreement between the parties. This Agreement supersedes all prior understandings, agreements, representations and documentation relating to the subject matter of this Agreement.

 

WAIVER AND SEVERABILITY

 

Failure to enforce a provision of this EULA will not constitute a waiver of that or any other provision of this EULA. If a court of competent jurisdiction determines that any part of this EULA or document that incorporates this EULA by reference is unenforceable, that ruling will not affect the validity of all remaining parts.

 

MODIFICATIONS OF THIS AGREEMENT

 

Poetic Networks may issue a modified Agreement at any time in its discretion by posting the modified Agreement on its website or by providing you with digital access to the modified Agreement through the Software or other means.  If any modification to this Agreement is not acceptable to you, you may terminate this Agreement before such modified Agreement becomes effective, upon which you must stop using the Software.  By using the Software after the modified Agreement becomes effective or otherwise indicating your acceptance of the amended Agreement, you are agreeing to be bound by the terms of the modified Agreement. 

 

ASSIGNMENT

 

The rights conferred by this License shall not be assignable by the Licensee without Licensor's prior written consent. Licensor may impose a reasonable license fee on any such assignment.

Poetic Networks’ obligation and actions may be subject to existing laws and legal process, and we may comply with law enforcement or regulatory requirements or requests regardless of any contrary term in this Agreement.