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Article Information

Reference #: TOU
Author: StudioPlus Software
Last Revised: 01.01.18

Terms of User Agreement

IMPORTANT - THIS AGREEMENT CONTAINS AND EXPLAINS IMPORTANT LEGAL RIGHTS AND LIMITATIONS. PLEASE READ IT CAREFULLY, AND PRIOR TO INSTALLATION OR ANY USE OF THE SOFTWARE SERVICE.

READ CAREFULLY: STUDIOPLUS LICENSES THE SOFTWARE, SERVICES, PRODUCTS AND OTHER LICENSED MATERIALS ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS AGREEMENT.

By selecting the “I accept“ button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Software or Services provided by StudioPlus or its subsidiaries, affiliates, or partners, (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity.

If you are unwilling to accept this Agreement, or you do not have the right, power and authority to act on behalf of and bind such entity or yourself as an individual (if there is no such entity), (a) DO NOT SELECT THE “I ACCEPT“ BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT, AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THE STUDIOPLUS MATERIALS; AND (b) WITHIN THIRTY (30) DAYS FROM THE DATE OF ACQUIRING THE STUDIOPLUS MATERIALS, LICENSEE MAY RETURN THE STUDIOPLUS MATERIALS (INCLUDING ANY COPIES) TO THE ENTITY FROM WHICH THEY WERE ACQUIRED FOR A REFUND OF THE APPLICABLE LICENSE FEES PAID BY YOU.

This Terms of Use and License Agreement (the "Agreement") is a legal agreement between you (either an individual or a single entity) and StudioPlus Software, LLC ("StudioPlus") for the StudioPlus software product, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation, as well as any enhancements, modifications or upgrades that may be offered to licensed end users as specified herein (collectively, the "Product").  By installing or otherwise using the Product, you agree to be bound by the terms of this Agreement.  If you do not agree to the terms of this Agreement, do not install or use the Product; you may, however, return it to the source for a full refund.

1. Use of Online Services.

a. Right to use. We grant you the right to access and use the Online Services and to install and use the Software included with your Subscription, as further described in this agreement. We reserve all other rights.

b. Acceptable use.You may use the Product only in accordance with this Agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Product, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Online Services. You may not rent, lease, lend, resell, transfer, or host the Product, or any portion thereof, to or for third parties except as expressly permitted in writing by StudioPlus.

c. End Users. You control access by End Users affiliated with you, and you are responsible for their use of the Product in accordance with this agreement. For example, you will ensure End Users comply with the StudioPlus User Agreement and Privacy Policy, and any other acceptable use policies that may be implemented from time to time.

d. Customer Data and Proprietary Rights. You are solely responsible for the content of all Customer Data. The Product and Online Services are the sole property of StudioPlus, and You acknowledge that you do not acquire any ownership rights by using the Services or the Product. The content available through the Product shall remain the property of the individual or entity that transmitted the content to StudioPlus on its behalf, and the use and copyright of such content is dictated by You, provided that your use of the service shall grant StudioPlus an irrevocable license to host and possess any such content for the purpose of providing the site services to You and transmit it to others at your direction. You will secure and maintain all rights in Customer Data necessary for us to provide the Product and its Online Services to you without violating the rights of any third party or otherwise obligating StudioPlus to you or to any third party. StudioPlus does not and will not assume any obligations with respect to Customer Data or to your use of the Product other than as expressly set forth in this Agreement or as required by applicable law. While it has no obligation to do so, and consistent with any other rights reserved herein, StudioPlus reserves the right to remove or make inaccessible any content that is illegal or possible to cause any delay, harm, or disturbance of any kind or tend to portray StudioPlus in a negative light.

e. Responsibility for your accounts.You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Product and its Online Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the Product and its Online Services.

f. Optional Support Services.Upon your request, StudioPlus may provide you with certain optional telephone support, maintenance, or error correction services related to the Product ("Support Services").  Support Services are provided under and governed by the then-current StudioPlus policies and programs, which are available herein or at www.StudioPlusSoftware.com, and are subject at all times to prepayment of the applicable Support Services fees.  Any supplemental software code provided to you as part of the Support Services shall be considered part of the Product and subject to the terms and conditions of this Agreement.  With respect to technical information you provide to StudioPlus as part of the Support Services, StudioPlus may use such information for its business purposes, including for product support and development.  StudioPlus will not utilize such technical information in a form that personally identifies you.

g. Privacy and Data. Any information collected by StudioPlus resulting from your use of the Product and the use of any third parties at your permission is governed by the applicable StudioPlus Privacy Policy.

h. Intellectual Property. All title, patents, intellectual property, trademarks and copyrights in and to the Product (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Product), the accompanying printed materials, and any copies of the Product are owned by StudioPlus or its suppliers. The Product is protected by copyright laws and international treaty provisions. You may not copy or reproduce the printed materials accompanying the Product. You shall not remove StudioPlus copyright notices, restricted rights legends or any other notices from the Software and Documentation and such notices shall appear on any and all tangible media distributed by Company containing the Software and Documentation.

i. Customer charges. You are permitted to require compensation for user accounts to access your portion of the Product. Such compensation is subject to its own processing rules and obligations and terms thereof. In no event shall StudioPlus be responsible for the collection of any compensation for such accounts on your behalf, and you are solely responsible for any sales or use tax collection.

2. Purchase of Services.

a. Ordering.

(i) By ordering or renewing a Subscription, you agree to the Offer Details for that Subscription. Unless otherwise specified, the Product and its Online Services are offered on an "as available" basis. You may place orders for your Affiliates under this agreement and grant your Affiliates administrative rights to manage the Subscription, but, Affiliates may not place orders under this agreement. You also may assign the rights granted under Section 1.a to a third party for use by that third party in your internal business. If you grant any rights to Affiliates or third parties with respect to Software or your Subscription, such Affiliates or third parties will be bound by this agreement and you agree to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Products.

(ii) Some offers may permit you to modify the quantity of Online Services ordered during the Term of a Subscription. Additional quantities of Online Services added to a Subscription will expire at the end of that Subscription. If you decrease the quantity during a Term, we may charge you a cancellation fee for the decrease in quantity as described below in Section 3.b.

b. Pricing and payment. Payments for any usage-based services are due according to the terms specified on the StudioPlusSoftware.com website, which may be modified from time to time, and are due and must be made according to the Pricing Schedule for your Subscription. Payment for all Licensing Fees under this Agreement are due prior to the release of any software activation codes. Payments for all Enhancements are due according to the payment schedule as defined as per your specific agreement with StudioPlus. Payment of all other charges under this Agreement are due thirty (30) days from the date of StudioPlus's invoice. A late payment charge of one and one-half percent (1.5%) per month may be charged upon any unpaid balance remaining due after the due date.

(i) In the case of a fixed-term pricing plan, the price level may be based on the quantity of Online Services you ordered. Some offers may permit you to modify the quantity of Online Services ordered during the Term and your price level may be adjusted accordingly, but price level changes will not be retroactive. During the Term of your Subscription, prices for Online Services will not be increased, as to your Subscription, from those posted in the Portal at the time your Subscription became effective or was renewed, except where prices are identified as temporary in the Offer Details, or for Previews or Non-StudioPlus Products. All prices are subject to change at the beginning of any Subscription renewal.

(ii) In the case for non-fixed term pricing plans, pricing is subject to change at any time upon notice.

c. Renewal.

(i) Upon renewal of your Subscription, this agreement will terminate, and your Subscription will thereafter be governed, by the terms and conditions set forth in the Portal on the date on which your Subscription is renewed (the “Renewal Terms“). If you do not agree to any Renewal Terms, you may decline to renew your Subscription.

(ii)In certain instances, You may choose to have a Subscription automatically renew or terminate upon expiration of the Term. Automatic renewal is pre-selected. You can change your selection at any time during the Term. If the existing Term is longer than one calendar month, we will provide you with notice of the automatic renewal before the expiration of the Term.

(iii) In other instances, your Subscription will renew automatically for additional one-month terms until you terminate the Subscription.

(iv) In limited or trial instances, renewal may not be permitted.

d. Taxes.Prices are exclusive of any taxes. You must pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any order placed under this agreement and which we are permitted to collect from you under applicable law. You will be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the distribution or provision of Products to your Affiliates. We will be responsible for all taxes based on our net income or on our property ownership. If any taxes are required to be withheld on payments you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority; provided, however, that you promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. You must make certain that any taxes withheld are minimized to the extent possible under applicable law.

e. Enhancements.StudioPlus agrees to provide custom Software enhancements (“Enhancements“) at a price and schedule as defined as per your specific agreement with StudioPlus. You acknowledge that any such Enhancements shall remain in the sole ownership in StudioPlus unless otherwise specifically transferred to you.

3. Term, termination, and suspension.

a. Agreement term and termination. This agreement will remain in effect until the expiration, termination, or renewal of your Subscription, whichever is earliest.

b. Subscription termination. Unless specified in your enterprise agreement, you may terminate a Subscription at any time.

(i) One-Month Subscription. A Subscription having a one-month Term may be terminated anytime without any cancellation fee. The termination will be effective at the end of the current paid Term. No refunds will be issued for unused Terms.

(ii) Subscriptions of more than one-month. A request to terminate a Subscription longer than one month will take effect at the end of the Subscription Term. You will be and remain responsible for all fees that remain up to and through the end of the Subscription Term, regardless of the frequency of your access or use. You will not be entitled to any refund or offset for unused portions of the Term.

c. Suspension. We may suspend your use of the Online Services if: (1) it is reasonably needed to prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged infringement under Section 5 within a reasonable time; (3) you do not pay amounts due under this agreement; or (4) you do not abide by the StudioPlus User Agreement and Privacy Policy or you violate other terms of this Agreement. If one or more of these conditions occurs, then:

(i) For Limited Offerings, we may suspend your use of the Online Services or terminate your Subscription and your account immediately without notice.

(ii) For all other Subscriptions, a suspension will apply to the minimum necessary part of the Online Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. We will give at least 30 days’ notice before suspending for non-payment. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate your Subscription and delete your Customer Data without any retention period. We may also terminate your Subscription if your use of the Online Services is suspended more than twice in any 12-month period, and a reactivation fee may be assessed.

4. Warranties.

a. Limited warranty.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE STUDIOPLUS SOFTWARE AND SERVICES ARE PROVIDED “AS IS“ AND “AS AVAILABLE“, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND STUDIOPLUS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE STUDIOPLUS SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

STUDIOPLUS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE STUDIOPLUS SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE STUDIOPLUS SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE STUDIOPLUS SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE STUDIOPLUS SOFTWARE OR SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, OR THAT DEFECTS IN THE STUDIOPLUS SOFTWARE OR SERVICES WILL BE CORRECTED. INSTALLATION OF THIS STUDIOPLUS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.

YOU FURTHER ACKNOWLEDGE THAT THE STUDIOPLUS SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE STUDIOPLUS SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY STUDIOPLUS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE STUDIOPLUS SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

b. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL STUDIOPLUS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA OR INFORMATION, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE STUDIOPLUS SOFTWARE OR SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE STUDIOPLUS SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF STUDIOPLUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall StudioPlus’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. To the extent allowed by applicable law, implied warranties on the Product, if any, are limited to ninety (90) days.

c. Exclusions. This limited warranty is subject to the following limitations:

(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;

(ii) this limited warranty does not cover problems caused by accident, abuse or use of the Products in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control;

(iii) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements; and

(iv) this limited warranty does not apply to Previews or Limited Offerings.

5. Defense of claims.

a. Defense.

(i) We will defend you against any claims made by an unaffiliated third party that a Product infringes that third party's patent, copyright or trademark or makes unlawful use of its trade secret.

(ii) You will defend us against any claims made by an unaffiliated third party that (1) any Customer Data, Customer Solution, or Non-StudioPlus Products, or services you provide, directly or indirectly, in using a StudioPlus Product infringes the third party's patent, copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from violation of the StudioPlus User Agreement and Privacy Policy.

b. Limitations. Our obligations in Section 5a won't apply to a claim or award based on: (i) any Customer Data, Non-StudioPlus Products, modifications you make to the Product, or services or materials you provide or make available as part of using the Product; (ii) your combination of the Product with, or damages based upon the value of, Customer Data, or a Non- StudioPlus Product, data, or business process; (iii) your use of a StudioPlus trademark without our express written consent, or your use of the Product after we notify you to stop due to a third-party claim; (iv) your redistribution of the Product to, or use for the benefit of, any unaffiliated third party; or (v) Products provided free of charge.

c. Remedies. If we reasonably believe that a claim under Section 5.a.(i) may bar your use of the Product, we will seek to:(i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Product. If these options are not commercially reasonable, we may terminate your rights to use the Product and then refund any advance payments for unused Subscription rights.

d. Obligations. Each party must notify the other promptly of a claim under this Section. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties' respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 5 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.

6. Support and Upgrades.

a. Software Maintenance Program. StudioPlus may sell you a Software Maintenance Program (“SMP“), for each License, or may include an SMP with your Subscription, that provides regular upgrades and support during the term of the SMP. The retail price of the SMP is defined in the Portal. All other training, upgrade, support or other professional services shall be furnished by StudioPlus to you at an additional fee determined in accordance with StudioPlus then-current standard rates, which shall include all reasonable travel costs and expenses of StudioPlus.

b. Support. StudioPlus will provide “First-Level” support direct to End Users of non-Enterprise SMP subscribers, and “Second-Level” support to senior-level support personnel of Enterprise SMP subscribers.

(i) StudioPlus will provide reasonable telephone, email, and chat support in English and during StudioPlus's non-holiday weekdays between the hours of 8:30 a.m. to 5 p.m. US Central Time. StudioPlus may make an effort to be available for support outside these hours, but does not guarantee availability outside these standard hours. StudioPlus may also make available other support material, including software documentation, training videos, and web-forums.

(ii) You shall use commercially reasonable efforts to provide StudioPlus with the necessary access (e.g., access to database files, log files, or program files) required to provide Support. StudioPlus does not ensure its performance of the technical support described herein if such access is not provided by you when requested by StudioPlus. Support shall include but not be limited to (1) a diagnosis of problems or issues of the supported programs and (2) reasonable commercial efforts to resolve reported and verifiable errors in supported programs so that such supported programs perform in all material respects the functions described in the associated documentation.

(iii) StudioPlus requires that SMP subscribers maintain appropriate hardware, database and operating system configurations at all times, as well as current database backups of StudioPlus Software. If we determine that the Problem may be related to a product, including but not limited to hardware or software, from a vendor with whom we have a cooperative support relationship, then we will collaboratively work with that vendor to address the Problem. If we determine that the Problem may be related to a product from a vendor that we do not have a cooperative support relationship with, we may ask you to request such vendor to work with us to address the Problem. If the issue relates to the third party product and not to the Licensed Software, then the third party vendor (and not StudioPlus) will determine the progress and resolution of that issue. StudioPlus Support Services do not include installing, fixing, conducting root cause analysis, providing product patches or updates for open source code or any other third party products or otherwise supporting third party products.

(iv) StudioPlus requires that Enterprise SMP subscribers establish and maintain the organization and processes to provide “First Level Support“ for the StudioPlus supported programs directly to your End Users. First Level Support shall include but not be limited to (1) a direct response to End Users with respect to inquiries concerning the performance, functionality or operation of the supported programs, (2) a direct response to End Users with respect to problems or issues with the supported programs, (3) a diagnosis of problems or issues of the supported programs, and (iv) a resolution of problems or issues of the supported programs. After reasonable commercial efforts, you are unable to diagnose or resolve problems or issues of the supported programs, you senior-level support personnel shall contact StudioPlus for “Second Level Support“.

7. Software.

a. Additional Software for use with the Online Services. To enable optimal access and use of certain Online Services, you may install and use certain Software in connection with your use of the Online Service. The number of copies of the Software you will be permitted to use or the number of devices on which you will be permitted to use the Software will be as described in the Online Services Terms in the product specific license terms for the Online Service. We may check the version of the Software you are using and recommend or download updates, with or without notice, to your devices. Failure to install updates may affect your ability to use certain functions of the Online Service. You must uninstall the Software when your right to use it ends. We may also disable it at that time. Your rights to access Software on any device do not give you any right to implement StudioPlus patents or other StudioPlus intellectual property in software or devices that access that device.

b. License confirmation. Proof of your Software license is (1) this agreement, (2) any order confirmation, and (3) proof of payment.

c. License rights are not related to fulfillment of Software media. Your acquisition of Software media or access to a network source does not affect your license to Software obtained under this agreement. We license Software to you, we do not sell it.

d. Transferring and assigning licenses. License transfers are not permitted.

8.PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH STUDIOPLUS AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. IF YOU DO NOT CONSENT TO THE TERMS OF THIS SECTION, YOU ARE NOT PERMITTED TO USE THE SERVICES.

a.You and StudioPlus agree to arbitrate any dispute arising from these Terms of Use or relating to the Services. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and StudioPlus agree: (i) to notify each other of any dispute within thirty (30) days of when it arises; (ii) to attempt informal resolution prior to any demand for arbitration; (iii) that any arbitration will occur in Collier County, Florida; and (iv) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association (“AAA“), including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable). The AAA’s rules are available at www.adr.org. Other than class procedures and remedies described in these Terms of Use, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Notwithstanding the foregoing, you and StudioPlus are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for (1) the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents or (2) allegedly criminal conduct under laws of the United States or any state thereof including, but not limited to, criminal laws addressing pornography, exploitation, obscenity, or hate speech.

b.The arbitrator will not be bound by rulings in prior arbitrations involving different StudioPlus users but is bound by rulings in prior arbitrations involving the same StudioPLus user to the extent required by applicable law. The arbitrator’s award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. YOU AND STUDIOPLUS AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND STUDIOPLUS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER STUDIOPLUS USERS.

c. Unless you and StudioPlus agree otherwise, in the event that a court decides that any part of this Section is invalid or unenforceable, you agree that any claim or dispute that has arisen or may arise between you and StudioPlus must be resolved exclusively by a state or federal court located in Collier County, Florida. The remainder of the Terms of Use will continue to apply. You and StudioPlus agree to submit to the personal jurisdiction of the courts located within Collier County, Florida for the purpose of litigating all such claims or disputes.

9. Miscellaneous.

a. Notices. You must send notices by mail, return receipt requested, to the address below.

StudioPlus Software, LLC.
2070 River Reach Drive # 77
Naples, FL 34104

You agree to receive electronic notices from us, which will be sent by email to the account administrator you specify in the Portal. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the account administrator email address that you specify in the Portal is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.

b. Assignment. You may not assign this agreement either in whole or in part.

c. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.

d. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.

e. No agency. This agreement does not create an agency, partnership, or joint venture.

f. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.

g. Applicable law and venue. This agreement is governed by Florida law, without regard to its conflict of laws principles, except that (i) if you are a U.S. Government entity, this agreement is governed by the laws of the United States, and (ii) if you are a state or local government entity in the United States, this agreement is governed by the laws of that state. Any action to enforce this agreement must be brought in the State of Florida. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights. In the event any lawsuit or other enforcement action is undertaken to enforce StudioPlus’ rights hereunder, you agree to reimburse StudioPlus for its reasonable attorney’s fees and other costs incurred in enforcing such rights.

h. Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) the Subscription Agreement, (2) these Terms, (3) any applicable Offer Details, and (4) any other documents in this agreement.

i. Survival. The terms in Sections 1, 2.e, 4, 5, 6, 7, 8, and 9 will survive termination or expiration of this agreement.

j. Force majeure.Neither party will be liable for any failure in performance due to causes beyond that party's reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This Section will not, however, apply to your payment obligations under this agreement.

k. Authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf.

l. Irreparable harm. You agree that any breach or violation of this Agreement involving the unauthorized use or disclosure of confidential or proprietary information or materials is likely to result in irreparable harm to StudioPlus, and that in such event, that StudioPlus will be entitled to obtain a court order enjoining you from such conduct.

m. Export Control. You may not use or otherwise export or re-export the StudioPlus Software except as authorized by United States law and the laws of the jurisdiction(s) in which the StudioPlus Software was obtained. In particular, but without limitation, the StudioPlus Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the StudioPlus Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the StudioPlus Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.

n. Amendment. StudioPlus reserves the right to make changes to these terms from time to time, which shall be effective upon notice to you. You agree to promptly review any such revised terms.

o. Privacy Policy.The terms and conditions of StudioPlus’s applicable Privacy Policy are hereby incorporated by referenced herein.

9.Definitions.

Any reference in this agreement to "day" will be a calendar day.

"Affiliate" means any legal entity that a party owns, that owns a party, or that is under common ownership with a party.

"Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity.

"Customer Data" means all data, including all text, sound, video, or image files, and software, that are provided to StudioPlus by, or on behalf of, Customer through use of the Online Service. All Customer Data shall remain the property of You or Customer, as applicable.

"End User" means any person you permit to access Customer Data hosted in the Online Services or otherwise use the Online Services, or any user of a Customer Solution.

“Enterprise Customer” means an entity on an enterprise agreement to use the Product.

"Non-StudioPlus Product" means any third-party-branded software, data, service, website or product.

"Offer Details" means the pricing and related terms applicable to a Subscription offer, as published in the Portal.

"Online Services" means any of the S online services, mobile applications, or other internet-based services provided by StudioPlus and utilized by Customer under this agreement.

“Online Services Terms” means the Terms of Use, User Access Agreement, or other applicable terms (including any Privacy or Security Policies) required for use and access to Online Services.

"Previews" means preview, beta, or other pre-release version or feature of the Online Services or Software offered by StudioPlus to obtain customer feedback.

"Portal" means the Online Services’ respective web sites.

"Product" means any Online Service (including any Software).

"Software" means software we provide for installation on your device as part of your Subscription or to use with the Online Service to enable certain functionality.

"Subscription" means an enrollment for Online Services for a defined Term as specified on the Portal. You may purchase multiple Subscriptions, which may be administered separately and which will be governed by the terms of a separate StudioPlus Subscription Agreement.

"Term" means the duration of a Subscription (e.g., 30 days or 12 months).

Last revised: September 30, 2021