“Flanimate Power Tools” End User License Agreement
Copyright 2011-2021, Electric Dog, All rights reserved
Updated September 7, 2021. Replaces the prior version in its entirety.
This End User License Agreement (“EULA”) is a legal agreement between you (the “Licensee”) and the Licensor in respect of the Licensee’s use of the Software Product.
By copying, installing, or using all or any portion of this software, you accept all the terms and conditions of this EULA. You agree that this EULA is a legal agreement between you as the Licensee and the Licensor. If you do not agree to the terms of this EULA, you must not install, copy or use the Software Product.
The Software Product is licensed, not sold, only in accordance with the terms of this EULA.
“Compatible Computer”, “Device” mean a Computer which meets the required specifications ( https://flash-powertools.com/supported-versions-of-flash-and-animate/ ) and has operational supported Third Party Software installed on it.
“Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications.
“Documentation” means the user manuals, user instructions, specifications, reports or other information provided by the Licensor relating to the Software Product, and includes any information to properly install, operate and effectively use the Software Product and any descriptive information pertaining to any modification to or new Software Update which the Licensor may provide from time to time.
“Intellectual Property Rights” means intellectual property rights conferred on a party or recognised at Law in any territory throughout the world including any rights associated with copyright, trademark, business name, patent, innovation concept, semiconductor, formula, trade secret, method, circuit layout, invention and any other results of intellectual activity in any field of industry or endeavour.
“Law” means acts, laws, ordinances, regulations, by-laws, orders, awards and proclamations whether Commonwealth, State or local.
“License Key” means a specific software-based key for the Software Product which verifies authorized software product access.
“Licensor”, “Authors”, “we”, “us” means Nickolay Tilchev and Vladin Mitov trading as Electric Dog, ABN 14 467 337 105.
“Premium Version” means “EDAP Tools Premium” – the extended, registered version of the Software Product, with unlocked premium functionality after the purchase of a License Key.
“Software Product” means all of the software and materials provided under this EULA, including but not limited to all Flanimate Power Tools (also colloquially known as “EDAP Tools”, “EDAPT”, “Flash Power Tools” or “Flanimate Tools”), software files and other computer information and associated Documentation.
“New Version ” means a new iteration of the Software Product, released to add new features.
“Software Update”, “Hotfix” means the incremental releases for a given version of the Software Product, that may be released to fix bugs or other issues.
“Standard Version” means “EDAP Tools Standard” – the core standard version of the Software Product, available for download and use free of charge.
“Third Party Software” means software applications not created by the Licensor, for which the Software Product may add new functionality. This includes, but is not limited to, Macromedia Flash, Adobe Flash, Adobe Animate.
“User”, “End User”, “Customer”, and “Licensee” means you and any legal entity that obtained the Software Product and on whose behalf it is used.
In this EULA:
(a) “including” and similar expressions are not words of limitation;
(b) a reference to a clause is a reference to a clause to this EULA;
(c) headings are for convenience only and do not form part of this EULA or affect its interpretation; and
(d) a provision of this EULA must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of that provision.
3 Software License
3.1 Grant of License
Subject to Licensee’s continuous compliance with this EULA, the Licensor hereby grants to Licensee a personal, non-assignable, non-exclusive, limited license to install and use the Software Product in accordance with the terms of this EULA and applicable Documentation. This EULA grants a perpetual license for the version of the Software Product that the Licensee purchased the License Key for, unless and until this EULA is terminated by the Licensee or the Licensor under clause 9 (Termination).
3.2 Purchase of Premium Version
Before purchasing a Premium Version license, the Licensee should:
(a) test the Standard Version thoroughly to make sure that the Software Product works correctly with their Third Party Software application(s) on their Compatible Computers, and that they are satisfied with it; and
(b) make sure that their Third Party Software application(s) are supported by the Premium Version.
A Premium Version license can be purchased online at the following address: https://store.flash-powertools.com
After purchasing a Premium Version license, the Licensee should promptly test compatibility of the Premium Version with the Licensee’s Computer and Third Party Software and if there is incompatibility (that is, where the premium features cannot be activated due to the incompatibility with the Licensee’s Computer or with any Excluded Third Party Software (as defined in clause 6.1) and not due to any fault with the Software Product) then the Licensee may request a refund from the Licensor within 7 days of purchase. A refund will be granted if the Licensee provides a video (screen capture) or other reasonable evidence of the relevant incompatibility, that clearly demonstrates that the Licensee cannot activate the premium features on its Computer due to the incompatibility with the Licensee’s Computer or Third Party Software. When the refund is processed the Licensee’s License Key will be revoked.
3.3 Software Updates
This EULA grants the Licensee the right to install and use Software Updates issued for the version of the Software Product that the Licensee purchased. For example, a license purchased for EDAPT Premium v.6.0 will allow the use of any incremental updates, such as EDAPT Premium v.6.0.1, EDAPT Premium v.6.5, etc., if such updates are released.
The Licensee acknowledges and agrees that the Licensor:
(a) is under no obligation to provide any Software Updates;
(b) can use Software Updates to discontinue, add, remove, modify or otherwise alter features of the Software Product at its sole discretion, and that such changes will not be a breach of this EULA (provided that in the case of the Premium Version, functionality is not impaired or reduced);
(c) can require the Licensee to install Software Updates in order to continue using the Software Product; and
(d) can provide Software Updates in such a manner that the Software Product is unable to be reverted to its previous state.
3.4 Single-activation License
The Licensee acknowledges that a Premium Version single-activation license permits multiple installations of the Software Product and grants the Licensee the use of the Premium Version of the Software Product on one Compatible Computer at any given time.
The Licensee is not permitted to distribute or assign the license to third parties.
3.5 Multiple-activations License
The Licensee acknowledges that a Premium Version multiple-activations license permits multiple installations of the Software Product and grants the Licensee the use of the Premium Version of the Software Product on multiple Compatible Computers simultaneously. The exact numbers are clearly specified in product names and descriptions for each license type. For example: “3 activations”, “5 activations”, “10 activations”, etc.
The Licensee is not permitted to:
(a) use the Software Product simultaneously on more computers than the amount specified in the license; or
(b) distribute the license to people outside of the Licensee’s organization.
3.6 New Versions of Software Product
The Licensor may, at its sole discretion, release New Versions of the Software Product. A License Key will only grant the Licensee use of the version of Software Product the Licensee purchased. To obtain access to a New Version, the Licensee must purchase a new License Key.
4 Intellectual Property
4.1 Intellectual Property Rights of Licensor
The Intellectual Property Rights in the Software Product and any authorized copies that the Licensee makes are owned by the Licensor. The Licensor warrants that the rights granted under this EULA do not infringe the Intellectual Property Rights of any third party;
Except as expressly stated in this EULA, this EULA does not grant the Licensee any Intellectual Property Rights in the Software Product. The Licensee acknowledges that all rights not expressly granted are reserved by the Licensor.
The Licensee must not falsely represent or imply that the Software Product was created, or is owned by, the Licensee or any other person other than the Licensor.
4.2 Third Party Intellectual Property Rights
During the Licensee’s use of the Software Product, the Licensee must not utilize content in a way that infringes the Intellectual Property Rights of any third party. The Licensee must obtain the consent of the owner of the relevant Intellectual Property Rights in respect of the content it intends to use. The Licensee acknowledges that the Licensor is not liable to the Licensee or to any third party for the Licensee’s breach of this clause 4.2.
4.3 Logos and trademarks
The Licensee acknowledges that the Licensee may not use the Licensor’s trade marks, logos, domain names or brands to promote the Licensee or its products or services except in any instance where the Licensor has expressly authorized the Licensee to do so.
This clause 4 survives the termination or expiry of this EULA.
5.1 Meaning of Confidential Information
“Confidential Information” for the purposes of this clause means all information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
5.2 Confidentiality Obligations
Each party must use its reasonable endeavours to ensure that it does not:
(a) disclose any Confidential Information of the other party;
(b) use any Confidential Information in any manner which may cause or be calculated to cause loss to the other party.
5.3 Disclosure of Confidential Information
Despite anything else contained in this EULA to the contrary, a party may make any disclosure of Confidential Information:
(a) if it has the consent of the party disclosing such information to do so;
(b) if it is required to do so by Law;
(c) if the Confidential Information has come within the public domain, other than by a breach of this clause 5 by any party;
(d) if the Confidential Information was in its possession or known by it without restriction prior to receipt from the party disclosing such information.
This clause 5 survives the termination or expiry of this EULA.
6 Third parties
6.1 Functionality of Third Party Applications
The Software Product is intended to add new functionality to Third Party Software applications not created by the Licensor as set out at the following link: https://flash-powertools.com/supported-versions-of-flash-and-animate/ (“Supported Applications”). However, the Licensor has no control over the evolution of these Supported Applications, so it is possible that some of the Software Product features may not function properly with some of them. Unless the Licensor states to the contrary, and except as required by Law, the Licensor makes no warranties in relation to the compatibility of the Software Product with any Third Party Software that is not a Supported Application (or with any updates of any Third Party Software) (“Excluded Third Party Software”) or in relation to the functionality, operation or conditions of any Third Party Software.
6.2 Third Party Updates
The Licensee acknowledges and agrees that:
(a) the Licensor is not responsible for any Third Party Software updates;
(b) Third Party Software updates may be subject to their own terms and conditions; and
(c) Third Party Software updates may interfere with the functionality of the Software Product.
7 Use of the Software Product
7.1 Proprietary Notices
Any permitted copy of the Software Product (including without limitation Documentation) that the Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Software Product.
7.2 Commercial Purposes
The Licensee is free and encouraged to use the Software Product to create commercial work.
The Licensee agrees that it will not use the Software Product:
(a) other than as permitted by this EULA;
(b) in a manner inconsistent with its design or Documentation;
(c) to access the Software Product in order to build a competitive product or service.
7.3 No Modifications
The Licensee may not modify, port, adapt, or translate the Software Product.
7.4 No Reverse Engineering
The Licensee must not create deviate works of, reverse engineer, decompile, disassemble, debug, or otherwise attempt to discover the source code of the Software Product.
7.5 No Transfer
The Licensee will not rent, lease, sell, sublicense, assign, or transfer their rights in the Software Product (including without limitation, software obtained through a web download), or authorize any portion of the Software Product to be copied onto another individual or legal entity’s computer except as may be expressly permitted herein.
7.6 Interference with Software Product
The Licensee must not interfere with or disrupt the integrity or performance of the Software Product or any Third Party Software.
7.7 Access Information
The Licensee must keep user identification, including the License Key or any passwords, that it uses to access the Software Product secure. The Licensee is solely responsible for all activities that occur in respect of its user account for the Software Product, and if the Licensee becomes aware of unauthorized use of its user account for the Software Product, it agrees to notify the Licensor immediately.
The Licensee must not disable any security features within the Software Product.
8 Indemnification and Liability
Subject to the other terms of this clause 8, the Licensor excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Software Product that are not expressly set out in this EULA to the maximum extent permitted by law.
The Licensor is not liable in the event of malfunctions or failure in the Software Product resulting from misuse, abuse, neglect or alteration of the Software Product by the Licensee or any third party; problems with electrical power, acts of nature, unusual temperatures, or humidity; improper installation, or damage to the Software Product caused by the Licensee or by any third party.
8.2 Consequential loss
Subject to the other terms of this clause 8, and except for liability that cannot be excluded or limited under law, the Licensor will not be liable to Licensee for any loss, damages, claims, or costs whatsoever including any consequential, indirect or incidental damages, any lost profits or lost savings and any damages resulting from business interruption.
8.3 Limitation of liability
Subject to the other terms of this clause 8, and to the extent permitted by law, the Licensor’s maximum aggregate liability to the Licensee for any loss or damage or injury arising out of or in connection with the supply of the Software Product under this EULA, however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to an amount equal to the amount paid by the Licensee under this EULA in the 12-month period preceding the matter or event giving rise to the claim.
8.4 No exclusion
Nothing in this EULA is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (ACL), or the exercise of a right conferred by such a provision, or any liability of the Licensor in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
8.5 Application of ACL
If the Licensor is liable to the Licensee in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Licensor’s total liability to the Licensee for that failure is limited to the resupply of the Software Product or the payment of the cost of resupply (except where the supply is of a kind ordinarily required for personal, domestic or household use).
8.6 Major failures, minor failures under ACL
This clause applies only if the Licensee is a consumer under ACL. The Software Product comes with guarantees that cannot be excluded under the ACL. For major failures with the Software Product, the Licensee is entitled:
(a) to cancel this EULA and request a refund;
(b) return the Software Product and ask for a replacement, or one of similar value if reasonably available; or
(c) keep the Software Product and ask for compensation for the reduction in value caused by the problem.
If a failure with the Software Product does not amount to a major failure, the Licensor can choose to offer the Licensee a refund, replacement or repair which will be provided free of charge and within a reasonable time. If this is not done, the Licensee is entitled to terminate this EULA and receive a refund for the Software Product.
The Licensee acknowledges that a refund claim must contain a video (screen capture) or other reasonable evidence of the relevant failure, that clearly demonstrates that the Licensee cannot activate the premium features on its Computer due to a failure of the Software Product. When the refund is processed the Licensee’s License Key will be revoked.
8.7 Indemnification by Licensee
The Licensee agrees to indemnify the Licensor against all liabilities and losses arising from the Licensee’s breach of this EULA.
Notwithstanding anything else in this clause 8, a party’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the other party.
This clause 8 survives the termination or expiry of this EULA.
9.1 Termination by the Licensor
The Licensor may terminate this EULA at any time in writing if:
(a) the Licensee has breached any provision of this EULA (including by failing to pay any amount owing for the Premium Version by the due date);
(b) the Licensee has acted in a way that indicates it does not intend to comply with a provision of this EULA; or
(c) the Licensor is required to terminate this EULA by Law or the operation of the Software Product becomes unlawful. Upon termination by the Licensor under this clause 9.1, the Licensee’s License Key will be revoked and the license will be revoked, deactivated, and blocked from further use.
9.2 Termination by the Licensee
The Licensee may terminate this EULA without notice to the Licensor simply by ceasing to use all aspects of the Software Product (including those that interoperate with Third Party Software).
If the Licensee resumes use of the Software Product in any way, this EULA will apply to that resumed use.
10 General provisions
10.1 Internet Connectivity
The Premium Version of the Software Product needs an active internet connection, used for license validation. Use of the Premium Version of the Software Product will cause the Licensee’s computer, without notice, to automatically connect to the internet and to communicate with flash-powertools.com, store.flash-powertools.com, or any other of our flash-powertools.com subdomains for the sole purpose of license validation. The Licensee acknowledges and agrees that it is responsible for ensuring that its Computer is connected to the internet where necessary to use any functions of the Software Product.
If the Licensee provides the Licensor with verbal feedback and/or written feedback related to the Software Product or related documentation or website materials, a report of any errors which the Licensee may discover, or suggestions for improvements or changes to any of the foregoing, the Licensee hereby grants the Licensor a perpetual, irrevocable, transferable, royalty-free, fully paid up worldwide right to use such feedback to develop and improve the Software Product, and/or any product or service offered by the Licensor.
If any term of this EULA is held by a court of competent jurisdiction to be invalid or unenforceable, then this EULA, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
10.4 Survival of Terms
Any termination by either party will not affect any rights, obligations, liabilities or licenses that are either expressed in this EULA to be continuous or are intended to continue indefinitely by implication.
10.5 Relationship of the Parties
This EULA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.6 Amendments to EULA
The Licensor may amend this EULA from time to time by either notifying the Licensee using the Software Product or providing details of the amendments on its website ( https://store.flash-powertools.com/eula/ ). The Licensor will act reasonably in making any amendments and if the Licensee does not agree to the amendments, the Licensee may terminate this EULA under clause 9.2.
10.7 Entire Agreement
This EULA constitutes the entire agreement between the parties and supersedes all prior understandings and agreements concerning its subject matter.
10.8 No Third-Party Beneficiaries
There are no third-party beneficiaries to this EULA.
Unless otherwise specified in this EULA or agreed pursuant to a separate written agreement between the Licensee and the Licensor, the Licensor will not be obliged to support the Software Product, whether by providing advice, training, error-correction, modifications, Software Updates, new releases or enhancements or otherwise.
No failure or delay by either party in exercising any right under this EULA constitutes a waiver of that right. Other than as expressly stated in this EULA, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party under any Law.
10.11 Governing law and jurisdiction
The Laws of Tasmania, Australia govern this EULA.
The parties submit to the non-exclusive jurisdiction of the courts of Tasmania, Australia.