The Texture Mill LLC

End User License Agreement (“EULA”)

By accepting this EULA or by downloading or using the software you signify that you have read and agree to all the terms of this license agreement.

Preamble

By agreeing to this EULA, you the user (“User”) hereby indicates User’s complete and unconditional acceptance of all the terms and conditions of this EULA. This EULA constitutes the complete agreement between User and The Texture Mill with regard to User’s access, download, and/or use of the software and all content contain therein (individually and collectively, the “Content”), and this EULA supersedes and replaces any other agreement that was or will be presented at the time of Content installation.

General License Agreement

1. Content License. The Texture Mill grants to User and User hereby accepts, subject to the limitations and obligations of this EULA, a personal, non-exclusive, non-transferable license to use the Content.

2. Open Source and Third Party Components. The Content contains or may contain certain components which are used and/or published under open source licenses. By accepting this EULA, User agrees to comply with all applicable third party license agreements.

3. Title and Ownership. The Content contains copyrighted and/or proprietary information protected by the laws of the United States and/or international laws and treaties. The Texture Mill and its third party licensors retain all rights in, title to, and ownership of the Content. The Texture Mill gives no rights or warranties with regard to the use of any objects, names, trademarks, service marks, or works of authorship depicted in any Content, and User is solely responsible for separately obtaining all such necessary rights or consents that may be required for any particular use of objects, names, trademarks, service marks or works of authorship. The Texture Mill reserves all rights not expressly granted to User in this EULA.

4. Restrictions on Copying. The Content is provided for User's use only. User does not have the right to provide the Content to others in any form or on any media except as set forth in this EULA. The Content may be copied in whole or in part for User’s use only. Specifically, User may copy the Content onto the storage device of an unlimited number of computers owned or controlled by User. Each individual or entity must obtain his or her own license to use the Content.

5. Terms of Use. Subject to the terms and conditions of this EULA, User may (i) access, use, copy and modify the textures in the Content library in the creation and presentation of animations, renderings, and other permitted uses and works, (ii) incorporate images derived by User from the textures in the Content library in User’s animations, renderings, and other permitted uses and works, and (iii) publish, market, distribute, transfer, sell or sublicense User’s animations, renderings and other permitted uses and works; provided that User may not in any case publish, market, distribute, transfer, sell or sublicense any textures, renderings, software applications, data or any other product from which the Content, or any part thereof, or any substantially similar version of the Content can be separately exported, extracted or de-compiled into any re-distributable form or format. All other rights with respect to the Content and its use are reserved by The Texture Mill and its licensors.

6. Other Restrictions. This EULA is User’s proof of license to exercise the rights granted herein and may be printed and retained by User. User shall not give, sell, rent, lease, sublicense, or otherwise transfer or distribute any Content on a temporary or permanent basis without the prior written consent of The Texture Mill. User may not reverse engineer, de-compile, disassemble, or create derivative works from the Content except as set forth in Section 5 above.

7. Protection and Security. User agrees that the Content is the property of and proprietary to The Texture Mill and its licensors, and further agrees to protect the Content and all parts thereof from unauthorized disclosure and use by User’s agents, employees, associates, family members, customers, or any other third party. User shall be exclusively responsible to ensure the selection, supervision, management, control, and use of the Content conforms to all terms of this EULA.

8. Export Restrictions. The Content may be subject to the export controls of the United States Departments of State and Commerce and User agrees to fully comply with all applicable United States export regulations governing export, destination, ultimate end user, and other restrictions relating to the Content.

9. United States Government Restrictions Rights. If User is part of any agency, department, or other entity of the United States Government (the “Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Content is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Content is a “commercial item” and “commercial computer software”. In accordance with such provisions, any use of the Content by the Government shall be governed solely by the terms of this EULA.

10. Patent, Copyright, and Trade Secret Indemnity. User agrees to indemnify The Texture Mill and hold The Texture Mill harmless against all liability resulting from or related to any claim that (i) any content or work created by User, or (ii) User’s use of the Content, infringes any third-party patent right, copyright, or other intellectual property right, or misappropriates, or misuses any trade secret or other proprietary right, or any portion thereof, of any third party.

11. Infringement Warranty. The Texture Mill warrants to the User that, to the best of its knowledge, the digital data comprising the Content developed and owned by The Texture Mill, does not infringe the rights, including patent, copyright, and trade secret rights, of any third party, nor was such digital data unlawfully copied or misappropriated from digital data owned by any third party; provided, however, that The Texture Mill makes no representation or warranty with respect to infringement of any third party's rights in any image, trademarks, works of authorship, or object depicted by such Content or in any Content developed by any of The Texture Mill’s licensors.

12. Limited Warranty. The Texture Mill warrants to the User that, to the best of its knowledge, the digital data comprising the Content developed and owned by The Texture Mill, does not infringe the rights, including patent, copyright and trade secret rights, of any third party, nor was such digital data unlawfully copied or misappropriated from digital data owned by any third party; provided, however, that The Texture Mill makes no representation or warranty with respect to infringement of any third party's rights in any image, trademarks, works of authorship or object depicted by such Content or in any Content developed by any of The Texture Mill’s licensors.

13. No Other Warranties. Except as expressly provided above, the Content and all related documentation are provided on an “as is” and “as available” basis, without warranty of any kind, and The Texture Mill hereby disclaims all other warranties, express, implied or statutory, including, but not limited to, any implied warranties of merchantability, non-infringement and fitness for a particular purpose, and any warranties arising from usage of trade or course of dealing or performance. In no event shall The Texture Mill or its dealers, distributors, officers, agents, employees, or suppliers be liable for any indirect, incidental, special, punitive, or consequential damages whatsoever, whether based on contract, tort, warranty, or other legal or equitable grounds, including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss, arising out of the use of or inability to use the Content, even if The Texture Mill has been advised of the possibility of such damages. In addition, in no event shall The Texture Mill’ s cumulative liability hereunder exceed the license fees paid by user to The Texture Mill for licensing the content. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to User.

14. No Support. Nothing in this EULA shall obligate The Texture Mill to provide any support for the software and/or Content. The Texture Mill may, but shall be under no obligation to, correct any defects in the software and/or Content and/or provide updates to User of the software and/or Content. User shall promptly report to The Texture Mill any defects User finds in the software and/or Content to aid The Texture Mill in creating improved revisions of such items.

15. No Liability for Hardware. User assumes complete responsibility for all hardware used in conjunction with the Content. The Texture Mill shall not be responsible in any way for the non-performance or malfunction of any hardware.

16. Remedies.

  1. Injunctive Remedies. The remedies provided herein shall not be deemed exclusive, but shall be cumulative and shall be in addition to all other remedies provided by law and equity. No delay or omission in the exercise of any remedy herein provided or otherwise available to The Texture Mill shall impair or effect The Texture Mill's right to exercise the same. An extension of indulgence or forbearance (which must be in writing) shall not otherwise alter or effect The Texture Mill's rights or obligations, nor be deemed to be a waiver thereof. The parties hereto agree that breach of any provisions of non-disclosure, secrecy, confidentiality, copying, use, protection, and security in this EULA by User will cause immediate and irreparable damage and injury to The Texture Mill. Each of the parties confirms that damages at law may be an inadequate remedy for breach or threatened breach of any such provisions. The parties agree that in such event The Texture Mill shall be entitled by right to an injunction restraining the User from violating any of said provisions. User hereby acknowledges that The Texture Mill has disclosed or will disclose to User valuable proprietary data set products, which are new and unique and give The Texture Mill a competitive advantage in the marketplace; that The Texture Mill intends to use such information to expand its business throughout the world; and that a violation of any of the provisions of this EULA is material and important and The Texture Mill shall, in addition to all other rights and remedies available hereunder, at law or otherwise, be entitled to a temporary restraining order and an injunction to be issued by any court of competent jurisdiction enjoining and restraining User from committing any violation of said provisions, and User shall consent to the issuance of such injunction. User acknowledges that the remedies provided for in this EULA are not injurious to or violative of any public interest or policy, and will not create a hardship greater than is necessary to protect the interests of The Texture Mill.

2. Arbitration Remedies. Any dispute arising out of or relating to this EULA, or a breach thereof, shall be determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules. Any such arbitration shall take place exclusively in San Francisco, California and the language of the arbitration shall be English. The arbitration shall be conducted by a single arbitrator and the decision of the arbitrator shall be final, conclusive and binding on the parties. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The Texture Mill and User shall each pay one-half of the costs and expenses of any arbitration, and the substantially non-prevailing party, as determined by outcome of the arbitration, shall be liable for both parties’ attorneys’ fees and costs. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive or other equitable relief without breach of this arbitration provision.

17. General Provisions.

  1. Costs and Expenses of Enforcement. In the event of the failure of either party hereto to comply with any provisions of this EULA, the defaulting party shall pay any and all costs and expenses, including reasonable attorneys' fees arising out of or resulting from such default (including any incurred in connection with any appeal), incurred by the injured party in enforcing its rights and remedies, whether such right or remedy is pursued by filing a lawsuit or otherwise.

2. Entire Agreement. This EULA is the entire agreement between the parties hereto with respect to the subject matter hereof, and it supersedes all prior agreements or understandings regarding its subject matter.

3. Governing Law. This EULA and the relationship of The Texture Mill and User is governed by the laws of the State of California, without regard to its conflict of law provisions. In addition, this EULA will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.

4. Successors and Assigns. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this EULA or any specific term or conditions hereof. This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns.

5. Relationship of the Parties. Both parties are acting as independent contractors with respect to the activities hereunder. Nothing in this EULA shall be deemed to create any type of agency, joint venture, or partnership relationship between the parties.

6. Further Information. Should User have any questions concerning any of the provisions of this EULA, or if User desires to contact The Texture Mill, please write to: info@thetexturemill.com.

7. Trademark and Copyright. All The Texture Mill products are trademarks or registered trademarks of The Texture Mill LLC. All other brand and product names are trademarks or registered trademarks of their respective holders.

8. Severability. If any part of this EULA is found to be unenforceable, the other provisions shall remain fully valid and enforceable. It is the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by law.

9. Assignment. This EULA, and any rights and licenses granted hereunder, may not be transferred or assigned by User, but may be assigned by The Texture Mill without restriction.

10. Statute of Limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this EULA or User’s use of the Content must be filed within one (1) year after such claim or cause of action arose or be forever barred.

11. Amendment. The Texture Mill reserves the right to amend, change, or revise this EULA at any time without notice to User.

END OF DOCUMENT