USER LICENSE AGREEMENT
Embroidery Central, Inc., dba Embroidery.com, ("Embroidery.com")
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 EMBROIDERY.COM 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 EMBROIDERY.COM REGARDING THIS DESIGN. IF YOU
DO NOT AGREE TO THESE TERMS, EMBROIDERY.COM IS UNWILLING TO GRANT YOU THIS LICENSE.
YOU ALSO ACKNOWLEDGE THAT THIS AGREEMENT IS THE ONLY AGREEMENT BETWEEN YOU AND
EMBROIDERY.COM REGARDING THE DESIGN FILES.
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.
THIS LICENSE IS LIMITED TO YOUR OWN PERSONAL, INTERNAL USE ONLY. 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. Embroidery.com 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 Embroidery.com. 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 Embroidery.com's
or Embroidery.com'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 Embroidery.com 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 on sale of the original or any subsequent copy.
The Design Files are protected by the copyright laws and other intellectual
property laws of 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
4. PRODUCTS CREATED FROM DESIGN: With the exception of designs from Anita Goodesign,
Adorable Ideas, and The Vermillion Stitchery*, 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 the United States or other countries.
You acknowledge and agree that it is your responsibility to ensure that products
created with the Design Files - particularly products intended for sale and
distribution - do not infringe on the intellectual property rights of third
parties not associated with Embroidery.com and its suppliers.
*Distribution of products embroidered with designs by Anita Goodesign and
Adorable Ideas are restricted to 50 items. Production of items embroidered with designs by The Vermillion Stitchery is limited to 25 items. If you intend to produce more embroidered items, please contact the respective designers for additional production & distribution licenses.
5. TERM AND TERMINATION: The license is effective until terminated. You may
terminate this license at any time by 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. Embroidery.com 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 purchases 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
7. LIMITATION OF REMEDIES AND LIABILITIES: TO THE MAXIMUM EXTENT PROVIDED
UNDER APPLICABLE LAW, IN NO EVENT WILL EMBROIDERY.COM 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 EMBROIDERY.COM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PROVIDED UNDER APPLICABLE LAW, EMBROIDERY.COM'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 EMBROIDERY.COM
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
8. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND: The Design Files are a "commercial
item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial
computer software" and "commercial computer software documentation"
as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212
and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire
the Software with only those rights set forth therein.
9. LICENSEE INDEMNIFICATION: You agree that you shall indemnify and hold Embroidery.com,
and its officers, directors, employees, and suppliers (each an "Embroidery.com
Indemnitee") harmless from any and all liabilities, losses, costs, damages
and expenses, including, without limitation, reasonable attorneys' fees, that
an Embroidery.com 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
10. VIRUSES: In the unlikely event your design download from Embroidery.com
contains a virus, Embroidery.com agrees to either replace the affected design
or refund the purchase price associated with the affected design. Embroidery.com's
liability is limited to replacement or refund of only the virus-infected design
downloaded from Embroidery.com 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. Embroidery.com will cover this liability
only if the virus resulted through no fault of your own from purchases made
through Embroidery.com while using our secure server.
11. GENERAL PROVISIONS Embroidery.com 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 State of Utah 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 a federal court in the District
of Utah or in state court in the First District Court, Cache County, Utah, and
you irrevocably submit to the jurisdiction and venue of any such court in any
such action or proceeding. THE PROVISIONS OF THE UNIFORM COMPUTER INFORMATION
TRANSACTIONS ACT WILL NOT APPLY TO THIS AGREEMENT. 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 supercedes 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. The terms of any e-mail, purchase order, order confirmation,
receipt or download confirmation, or similar document submitted by you to Embroidery.com
will have no effect.