This Agreement is a legal agreement between you (either an individual or a single entity) and Red Giant Software, LLC ("Red Giant"). It regulates your use of the Website to download User Submissions and share and use Preset Files from and in your work and projects.
If you do not agree to the terms of this Agreement, then do not share User Submissions or download or use Preset Files made available on the Website. By explicitly accepting this Agreement, however, or by sharing User Submissions on or downloading or using Preset Files from the Website, you are acknowledging and agreeing to be bound by the following terms:
Username and Password
You agree that you will be responsible for each and every access or use of the Website that occurs under your Username and Password, and that Red Giant is authorized to accept your Username and Password as conclusive evidence that you wish to upload User Submissions or download Preset Files pursuant to this Agreement.
General Use of the Website
You agree not to distribute, in any medium, any part of the Website. You agree not to alter or modify any part of the Website.
You agree not to use the Website for any commercial use. You may not:
You agree not to launch any automated system, including without limitation, "robots," "spiders," or "off- line readers" that accesses the Website in a manner that sends more request messages to the Website servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browsers.
You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any commercial purposes, including solicitation.
User Submissions: Submissions of Products and Preset Files for Sharing
As a Website account holder, you may upload to the Website User Submissions. Once uploaded, Preset Files will be made freely available to Red Giant and Users pursuant to the licenses you grant in this Agreement.
Red Giant, in its sole discretion, may determine which User Submissions are suitable for posting on the Website, and only such User Submissions as it deems suitable will be accepted and made available for other Users to view, download and use in accordance with this Agreement.
Rights Retained by Submitting User
User Submissions may be provided on a non-exclusive basis. You may still use, share or sell User Submissions via hardcopy, your own website or any other distributor after you enter into this Agreement. You and Red Giant agree that you will retain all rights, including title, copyright and other intellectual property, in and to User Submissions, including Preset Files, and no title, copyright or other intellectual property rights in User Submissions, including Preset Files, will be transferred or granted in any way to Red Giant, Users or any third party except as provided in this Agreement.
Licenses Granted to Red Giant and Users by Submitting User
By submitting User Submissions to the Website, you hereby grant Red Giant a worldwide, perpetual, non-exclusive, royalty-free license to use, reproduce, distribute, prepare derivative works of, display and perform the Preset Files within such User Submissions in connection with the Website and Red Giant's business, including without limitation, for business purposes relating to the promotion of the Website and the distribution of its products, software and programs, and the licensing of the Preset Files under this Agreement. Red Giant shall have the right to license any Preset File you upload to the Website.
By submitting User Submissions to the Website, you hereby grant Users a worldwide non-exclusive, non-transferable, royalty-free license to use, reproduce, distribute on the Website, prepare derivative works of display and perform the Preset Files you upload to the Website as provided for under the terms of this Agreement.
You shall not be entitled to any royalties or other compensation for Red Giant's usage of your User Submissions or Preset Files or User's usage of your Preset Files.
Sole Responsibility for Content Within User Submissions
Although all User Submissions are subject to Red Giant's approval prior to being made available to Users of the Website, such review does not make Red Giant responsible for the Content within User Submissions or the consequences of you uploading User Submissions. Red Giant acknowledges that User Submissions uploaded to the Website may violate copyright or other intellectual property rights. Red Giant does not own or control any Content displayed on the Website. Red Giant only manages the Website to allow Submitting Users to display their Products and to share their Preset Files used in their Products with other Users by uploading User Submissions.
Red Giant does not have any control over the actions of Submitting Users, even though Red Giant has preserved the right to examine the Content to be uploaded to the Website. Thus, compliance with copyright and other intellectual property law is solely the Submitting User's responsibility.
Red Giant may, however, at any time and in its sole discretion, edit, move, delete or refuse to accept User Submissions that it determines violates or may violate this Agreement or the proprietary rights of third parties, or is otherwise objectionable. You acknowledge that only you, and not Red Giant, are responsible for your User Submissions and any consequences of uploading User Submissions to the Website.
Representations & Warranties by Submitting User
You represent and warrant:
Termination of Agreement
This Agreement is effective until terminated under the following circumstances and in the following manner:
Upon termination of this Agreement, if you uploaded User Submissions to the Website, you may remove all your User Submissions from the Website. Any Permitted Use of your Preset Files by Users shall continue to be permitted up to the time you remove your User Submissions and Preset Files from the Website. Red Giant may also continue to use your User Submissions and Preset Files as contemplated and permitted in this Agreement up to the time you remove your User Submissions and Preset Files from the Website.
Preset Files within User Submissions that are subject to removal under these circumstances and that have been used in Products prior to the termination of this Agreement by Red Giant and Users may continue to be used by Red Giant and Users for existing, permitted purposes. If the termination of this Agreement was due to an infringement of a proprietary right with respect to a Preset File within a User Submission, then Red Giant shall cease to use such Preset Files and will use reasonable efforts to notify Users who downloaded such a Preset File to do the same. If the termination of this Agreement was due to an infringement of a proprietary right with respect to Content within User Submission, then Red Giant shall cease to use such User Submission on the Website.
Upon termination of this Agreement, if you download Preset Files from the Website, refer to "Termination of License" for your rights and duties upon such termination.
License Granted to Users
Except for licenses expressly granted to you in this Agreement, no other licenses are implied. You agree that downloading and using Preset Files does not entitle you to further rights beyond the license expressly granted herein, especially but not limited to copyright or other intellectual property rights.
Red Giant grants you a worldwide, non-exclusive, royalty-free license, non-transferable license to use Preset Files for the Permitted Uses as outlined below and as otherwise provided for in this Agreement. The use of Preset Files must be a Permitted Use. All other rights in and to the Content within User Submissions, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by the owner of such rights.
Permitted Uses of Preset Files
The following are Permitted Uses of Preset Files:
If you have any questions as to whether a use is a Permitted Use, contact the Website's Director.
Restrictions on Use and Distribution of Preset Files
You agree that you shall only use the Preset Files in a manner that complies with all applicable laws in the jurisdictions in which you use the Preset Files, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
Only you are permitted to use Preset Files you download from the Website. However, you may transfer Preset Files to parties with whom you are working on a single production for a Permitted Use, provided that such parties shall have no further or additional rights to use the Preset Files.
So long as your license under this Agreement has not been revoked by Red Giant, you may use Preset Files in an unlimited number of productions so long as each production is for a Permitted Use.
You may physically transfer Preset Files from one location to another. You may make one (1) copy of User Submissions solely for back-up purposes, but you must reproduce all proprietary notices on the back-up copy.
You may not represent that Preset Files you download from the Website are your own, and you may not distribute or sell Preset Files you download from the Website, except as otherwise provided in this Agreement. Your right to distribute Preset Files by themselves, except as otherwise provided in this Agreement, is limited to your submitting own User Submissions that incorporate and include the Preset Files you downloaded from the Website.
Replacement of Preset Files
Red Giant may replace a Preset File you download with an alternative Preset File for any reason. Red Giant may inform you of the replacement by sending notice of the same by e-mail to the last e-mail address contained in your User Website account.
In the event of a replacement, the license for the replaced Preset File immediately terminates and the latest version of this Agreement automatically applies to govern the use of the replacement Preset File. Upon replacement, unless otherwise provided in this Agreement, the license for the replaced Preset File immediately terminates for any Products, created for Permitted Uses, that do not already exist, and you agree to not use the replaced Preset File for future Products , even if for Permitted Uses.
If the reason for the replacement is an alleged or actual infringement of proprietary right in the replaced Preset File, you shall, at the direction of Red Giant, take all reasonable steps to discontinue the use of the replaced Preset File in Products that already exist. You agree to not use the replaced Preset File in future Products, even if for Permitted Uses.
Termination of License
A termination of this Agreement by you or Red Giant will serve to revoke the license granted to you under this Agreement. You understand and agree that Red Giant reserves the right to terminate this Agreement and revoke your license for any reason and at any time without warning. This Agreement, and all of your rights under it, including the license, terminates automatically without notice if you breach any of the Agreement's terms at any time.
If Red Giant terminates this Agreement and revokes your license, you must destroy any Preset File you downloaded, along with any copies or archives of it or accompanying materials (if applicable), and cease using the Preset Files you downloaded for any purpose, except as otherwise provided in this Agreement.
A Product prepared under authority of the license granted in this Agreement and before the termination of this Agreement and revocation of the license may continue to exist and be utilized after the termination and revocation. This privilege does not extend to the use of previously downloaded Preset Files nor to the preparation of new Products with Preset Files covered by the revoked license after the termination of this Agreement and revocation of the license.
Notice. If you are a copyright owner, or an agent thereof, and believe that any User Submission, including solely the Content or Preset File, infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing the Website's Director with the following information in writing:
See 17 U.S.C. 512(c)(3) for further detail.
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner or the copyright owner's agent to post and use the Content in your User Submission, you may send a counter-notice containing the following information to the Website's Director:
If a counter-notice is received by the Website's Director, Red Giant may send a copy of the counter-notice to the original complaining party informing that person or entity that Red Giant may replace the removed User Submission or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Submitting User who submitted a counter-notice, the removed User Submission may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Red Giant's sole discretion.
The Website, as operated by Red Giant, is to operate as an exchange of Preset Files between Users ¨C producers of the Preset Files who upload the Preset Files to share with Users who wish to download such Preset Files for their own use.
RED GIANT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE QUALITY, PERFORMANCE, ACCURACY OR COMPLETENESS OF THE USER SUBMISSIONS, PRESET FILES OR THE WEBSITE'S CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE CONTENT, USER SUBMISSIONS, PRESET FILES OR THE WEBSITE'S CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE WEBSITE, USER SUBMISSIONS, PRESET FILES OR THE WEBSITE'S CONTENT (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY USER OR THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY USER SUBMISSIONS, PRESET FILES, OR WEBSITE CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY USER SUBMISSION OR PRESET FILE POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.
IN NO EVENT SHALL RED GIANT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF USER SUBMISSIONS, PRESET FILES, OR THE WEBSITE'S CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE, USER SUBMISSIONS, OR PRESET FILES (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY USER SUBMISSION, PRESET FILE, OR THE WEBSITE CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY USER SUBMISSION OR PRESET FILE POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT RED GIANT SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Website is controlled and offered by Red Giant from its facilities in the United States of America. Red Giant makes no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless Red Giant Software, LLC and its officers, directors, employees and agents, from and against, any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
Red Giant reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to cooperate with Red Giant's defense of such claim.
This defense and indemnification obligation will survive this Agreement and your use of the Website.
The headings in this Agreement are for convenience only, and shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part hereof.
Red Giant reserves the right to amend this Agreement at any time and without notice, and it is your responsibility to review this Agreement for any changes. Your use of the Website following any amendment of this Agreement will signify your assent to and acceptance of its revised terms.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Red Giant without restriction.
If any term or provision of this Agreement is found to be unenforceable for any reason, this Agreement shall remain in full force and effect and shall be fully enforceable on its remaining terms and conditions.
Choice of Law and Venue
You agree that: (1) the Website shall be deemed solely based in Indiana; and (2) the Website shall be deemed a passive website that does not give rise to personal jurisdiction over Red Giant, either specific or general, in jurisdictions other than Indiana. This Agreement shall be governed by the internal substantive laws of the State of Indiana, without respect to its conflict of laws principles. Any claim or dispute between you and Red Giant that arises in whole or in part from your use of the Website shall be decided exclusively by a court of competent jurisdiction located in Fort Wayne, Indiana.
No waiver of any term in this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Red Giant's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Statute of Limitations
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND HAVE HAD OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF RED GIANT AGREEING TO PROVIDE YOU A MEANS FOR FREELY SHARING AND USING PRESET FILES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT THIS AGREEMENT AND ANY SUBSEQUENT AMENDMENT TO IT ARE THE COMPLETE AGREEMENT BETWEEN YOU AND RED GIANT, AND THAT THE SAME SUPERSEDES ANY PRIOR AGREEMENT.