PLEASE READ THIS END USER LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE DOWNLOADING OR USING THE TOONLY SOFTWARE OR ANY UPDATES, MODIFICATIONS OR ENHANCEMENTS TO THE TOONLY SOFTWARE (ANY OR ALL OF THE FOREGOING, “SOFTWARE”). BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE ENTERING INTO A CONTRACT AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE DO NOT SUBSCRIBE TO, DOWNLOAD OR USE THE SOFTWARE.
COMPANY MAY MODIFY OR AMEND THE TERMS OF THIS LICENSE BY POSTING A COPY OF THE MODIFIED OR AMENDED LICENSE ON THE COMPANY SOFTWARE WEBSITE. YOU WILL BE DEEMED TO HAVE AGREED TO ANY SUCH MODIFICATION OR AMENDMENT BY YOUR DECISION TO CONTINUE USING THE SOFTWARE FOLLOWING THE DATE IN WHICH THE MODIFIED OR AMENDED LICENSE IS POSTED ON THE COMPANY SOFTWARE WEBSITE IN THE END USER AGREEMENT LINK. PLEASE CHECK FREQUENTLY FOR UPDATES TO THESE TERMS. IF YOU DO NOT AGREE WITH ANY UPDATED TERMS, (i) YOU MUST NOTIFY THE COMPANY AT [email protected] WITHIN THREE (3) DAYS FROM THE POSTING DATE, (ii) YOU MUST STOP USING THE SOFTWARE PERMANENTLY, AND (iii) YOUR SUBSCRIPTION WILL TERMINATE.
REFERENCES TO “YOU” AND VARIATIONS OF IT REFER TO EACH PERSON DOWNLOADING OR USING THE SOFTWARE. EACH INDIVIDUAL USER REQUIRES A SEPARATE LICENSE TO ACCESS AND USE THE SOFTWARE.
i. Limited License Grant
Subject to your payment of the applicable subscription or licensee fees and the other terms of this License, Company grants You a personal, revocable, non-exclusive, non-transferable, limited right for You to install and use the Software on a computing device owned and controlled by You (“Device”), and to access and use the Software on such Device to create videos and other expressly permitted end user work product or content (“End User Work”) strictly in accordance with the terms and conditions of this License, the Third-party Usage Rules and any service agreement associated with Your Device (collectively “Related Agreements”).
You may access the Software from multiple Devices but You must access and use the Software only from one Device at any time. You cannot access or use the Software from multiple Devices at the same time.
If You purchased a license subscription level that expressly includes “commercial rights”, You may create End User Work for You to market Your own products or services.
You must not give a copy of or access to the Software to others or incorporate any part of the Software in any other software, product or service. Your Software password is personal to You and must not be shared by various users or used for the benefit of other persons or companies.
Subject to the other terms of this License and conditioned on Your compliance with all applicable laws, You may make copies of, distribute to others and display Your End User Work for Your own personal purpose, including to promote Your own products or services. You warrant that You are solely responsible for any liability or claims resulting from Your End User Work or from the products and services depicted there, and will ensure and warrant that Your use of such End User Work is lawful and complies with the laws.
ii. Restrictions on Use
You agree to use the Software strictly in accordance with the terms of the Related Agreements and shall not:
iii. Restriction on Assignment, Sublicense and Transfer
You cannot rent, lease, lend, sublicense, assign or transfer the Software, this License or any of the rights granted hereunder, except with the express prior written consent of the Company in Company’s sole discretion. Any attempted rental, lease, lending, sublicensing, assignment or transfer in contravention of this provision shall be null and void and of no force or effect.
iv. Notice Regarding AVC Video Standard
Please read this notice we are required to provide you regarding the use and distribution of videos that use AVC video standard:
THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL USE OF A CONSUMER OR OTHER USES IN WHICH IT DOES NOT RECEIVE REMUNERATION TO (I) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (“AVC VIDEO’) AND/OR (II) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM
i. Third Party Software; Open Source
The Software may utilize or include third party software and files that are subject to open source or third party license terms and restrictions (“Third Party Software”). You acknowledge and agree that Your right to use such Third Party Software as part of the Software is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms, restrictions and disclaimers contained therein. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of the relevant Third Party Software. In no event shall the Software or components thereof not provided to the public under third-party open source licenses be deemed to be “open source” or “publicly available” software.
The Company does not make any warranty whatsoever regarding any Third Party Software, or whether there are sufficient intellectual property rights for You to use any of it in connection with the Software or Your End User Work. Any claims regarding Third Party Software are solely between You and any applicable third party licensor or intellectual property owner, and h Company disclaims all liability for it.
The Software uses, compiles with and/or links to various components that are subject to open source licenses that You and us must comply with. Those include, without limitation, FFmpeg and LAME licensed under the LGPLv2.1 license, webp, libopenh264 and various open source font licenses. The Company does not own and You must not claim to own FFmpeg, Lame, webp, libopenh264 or any of the font or other open source components. FFmpeg source can be downloaded here; the LAME source code can be downloaded here.
Please review and comply with the Open Source Licenses terms. Check this link regularly as we will post there any updated or new open source license terms that apply to components of the Software. Contact us if you need more information on where to access the applicable open source licenses or download the original open source code. The applicable open source licenses may give you rights to modify and distribute the original open source code as may be expressly stated in the applicable open source license.
Ffmpeg, LAME, webp, libopenh264 and all other open source used, compiled with or linked to the Software is provided without warranty of any type, including any warranty of merchantability or fitness for a particular purpose. The owners of FFmpeg can be found at FFmpeg.org (copyright is in the Ffmpeg developers). The owners of LAME can be found at mp3dev.org . The owners of the fonts and other open source components are identified in the licenses linked above or their respective websites.
ii. Music and Sound Licenses
Background music, sounds and other audio files and software provided as part of or in connection with the Software (“Audio Files”) are solely for Your own use to create End User Work using the Software while this License is in effect. It is strictly prohibited to access or use any of the Audio Files for any other purpose or by anyone else, to distribute them to others, to commercialize them outside of a permitted use of End User Work, or to make standalone copies of an Audio File outside of Your licensed copy of the Software.
The musical compositions within the sounds tab of Toonly are licensed from Benjamin Sturley, Los Angeles, CA. The compositions are subject to all of the restrictions of this License.
The third-party licensors of Audio files reserve all right and title to their licensed works, including all intellectual property rights, subject only to the limited licensed rights granted to You in this License or the applicable third-party end user license agreement. You warrant to comply with the applicable terms and agree not to claim ownership of any such third-party work or Audio Files, and understand You may be subject to copyright infringement and other liability to the third-party owners of Audio Files if You use the Audio Files in any manner outside of the use of the Software to create Your End User Work.
You acknowledge and agree that the Software and all copyrights, patent rights, trademarks, trade secrets and other intellectual property rights associated therewith are (except for the licensed Audio Files, FFmpeg, Lame, webp, libopenh264, fonts and other Third-Party Software and open source mentioned above or used in the Software), and shall remain, the sole and exclusive property of Company. Furthermore, You acknowledge and agree that the source and object code of the Software and the format, directories, queries, algorithms, structure and organization of the Software are the intellectual property and proprietary and confidential information of Company and its affiliates, licensors and suppliers, as applicable. Except as expressly stated in this License and the applicable open source and other third-party licenses, You are not granted any intellectual property rights in or to the Software by implication, estoppel or other legal theory, and all rights in and to the Software not expressly granted in this License are hereby reserved and retained by Company. The ownership of the Third-Party Software and licensed Audio Files is retained by their respective licensors. Nothing herein limits the rights available to You under applicable open source licenses.
The Company retains all rights and title to its and its product trademarks, names and logos. You are not authorized to use the Company trademarks in any advertising, publicity or in any other manner without the prior written consent of Company, which may be withheld for any or no reason.
i. Limited Indemnification by Company
Subject to the exclusions in the next paragraph, if You notify the Company in writing at [email protected] promptly after You become aware of the claim, the Company will defend You against a written claim or lawsuit made against You that any components of the Software that are owned by the Company, in the unmodified form we made it available to You (and excluding all Third Party Software) and when used by You in full compliance with this License and the applicable terms of Third-Party Software, open source licenses and Audio Files, infringes the copyright of a third-party. We will use our lawyers and pay any settlements we agree to and any damages awarded by a court in the matter. As a condition to this, You must allow us sole control of the defense and resolution of the matter at our expense and cooperate with us in the defense and resolution. This is Your sole and exclusive remedy if there is a claim against You for infringement or misappropriation of any intellectual property rights relating to the Software or Your use.
ii. What is not covered by the Company Indemnification
The obligation to defend You and to pay amounts in settlement or awarded damages does not extend to or cover any and all claims or lawsuits based in whole or in part on: (i) patent claims or any type, (ii) Your End User Work and not the Software product, (iii) any alleged violation of the applicable open source licenses or Third-Party terms of any Third -Pparty Software or Audio Files, or (iv) access or use of any of the foregoing or the Software in a manner not expressly permitted by this License. You and Company acknowledge and agree that, in the event of a third party claim that is excluded as noted above in (i)-(iv), You (and not Company) will be solely responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement. You will, however, promptly notify Company in writing of such a claim.
iii. Your Indemnification of Company
Except to the extent the Company agrees to handle a matter pursuant to the first paragraph above (i), You agree to indemnify, defend and hold harmless Company and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, liability, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of, related to or in connection with the following: (i) Your access to or use of the Software, Third-Party Software, Audio Files or Third Party Content and Services; (ii) Your breach of this License or Your violation of law; (iii) the End User Work; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any contract, proprietary right or trade secret of any person or entity.
These obligations and exclusions in this Section 5 will survive any termination of the License or any subscriptions.
You acknowledge that the Software permits access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties (“Third Party Content and Services”). We are not liable for any such Third Party Content and Services, and the applicable third parties are solely responsible for them.
You acknowledge that Company does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites available through the Software). Furthermore, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and Company and its affiliates, partners, suppliers and licensors shall have no liability to You arising out of or in connection with Your access to and use of the Third Party Content and Services. Company hereby disclaims any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third Party Content and Services.
iii. Third Party Terms of Service
You acknowledge and agree that Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party located using the Software are governed by and require Your acceptance of the terms of service of such third party including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. Furthermore, You acknowledge and agree that the Third Party Content and Services and any related third party terms of service are subject to change by the applicable third party at its sole discretion and without any notice. You assume all risks arising out of or resulting from Your transaction of business over the Internet and with any third party, and You agree that Company and its affiliates, partners, suppliers and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that You are not being granted a license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein.
You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by Company or its affiliates of such Third Party Content and Services otherwise accessible through the Software, although Company has no obligation to restrict or deny access even if requested by You.
v. Inappropriate Materials
You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter (i) that You or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language; and (iii) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, You agree to use the Third Party Content and Services at Your sole risk and that Company and its affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
vi. Use of Third Party Content and Services
You agree that the Third Party Content and Services contain proprietary information and material that is owned by Company and its affiliates, partners, suppliers and licensors and is protected by applicable intellectual property and other laws including, without limitation, pursuant to copyright, and that You will not use such proprietary information or materials in any way whatsoever except for permitted use of the Third Party Content and Services. No portion of the Third Party Content and Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Content and Services in any manner, and You shall not exploit the Third Party Content and Services in any unauthorized way whatsoever, including, without limitation, by trespass or burdening network capacity. You agree that You will not use any Third Party Content and Services in a manner that would infringe or violate the rights of any other party, and that Company is not in any way responsible for any such use by You.
Company may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without a requirement of any notice or other action by Company. Upon termination of this License, You shall permanently cease all use of the Software and uninstall all copies of the Software. You may terminate this License at any time by providing written notice to us at [email protected].
i. Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SOFTWARE AND ANY THIRD-PARTY SOFTWARE, AUDIO FILES AND THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SOFTWARE, YOUR END USER WORK, ANY THIRD-PARTY SOFTWARE, AUDIO FILE AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
FURTHERMORE, COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SOFTWARE, THE END USER WORK, THIRD -PARTY SOFTWARE, AUDIO FILES OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SOFTWARE, THIRD-PARTY SOFTWARE, AUDIO FILES OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE SOFTWARE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE SOFTWARE, THIRD-PARTY SOFTWARE, AUDIO FILES OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR FROM THE SOFTWARE SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPANY HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE SOFTWARE.
ii. Limitations of Liability and Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE END USER WORK, YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SOFTWARE, ANY THIRD-PARTY SOFTWARE, AUDIO FILE OR ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF THREE (3) TIMES THE PAYMENTS PAID BY YOU TO TOONLY FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST TOONLY OCCURRED OR ONE THOUSAND DOLLARS ($1,000.00), WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Company does not warrant that the Software will be compatible or interoperable with Your Device or any other piece of hardware, software, equipment or device installed on or used in connection with Your Device. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of Your Device to diminish or fail completely, and may result in permanent damage to Your Device, loss of the data located on Your Device, and corruption of the software and files located on Your Device. You acknowledge and agree that Company and its affiliates, partners, suppliers, and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems. You are solely responsible for ensuring the security of Your Devices and protecting them against computer viruses and other malware.
iv. Product Claims
Except for the claims for which the Company agrees to handle pursuant to Section 5 (Infringement of Rights and Indemnification) above, You acknowledge that You (not Company) are responsible for addressing any third party claims relating to Your use or possession of the Software, and agree to notify Company of any third party claims relating to the Software of which You become aware. Furthermore, You hereby release Company from any liability resulting from Your use or possession of the Software, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
i. Governing Law
To the fullest extent permitted by law, this License shall be deemed to take place in the State of Idaho and shall be governed by and construed in accordance with the laws of the State of Idaho, excluding its conflicts of law principles. Any disputes arising from this License shall be adjudicated in the courts of the City of Ada County, Idaho. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or any State law adopting the Uniform Computer Information Transactions Act (UCITA), the application of which is expressly excluded in each case.
If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the applicability of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not effect a party’s ability to exercise such right or require such performance at any time thereafter, nor shall the waiver of a breach constitute waiver of any subsequent breach.
The following sections of this License and any other provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination: 1, 2(ii), (iii) and (iv), 3, 4, 5, 6, 7, 8, 9, and 10.
v. Entire Agreement
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