Terms of Use
Last Updated: September 2023
These Terms of Use (“Terms of Use”) set forth the terms on which LiveSurface Inc. (“LiveSurface Company”), a California corporation with its principal place of business in San Diego, CA (the “Company” or “us”) offers you (“you” or “your”) a limited license to use the software application referred to as “LiveSurface,” and a library of Images, both as more fully set forth below. LiveSurface, the Images as well as any other services offered to you via access to this website (www.livesurface.com) (the “Site”) or via download through an application store such as the Apple “App Store,” “Google Play” or other similar store, shall be referred to herein as the “Services”. The Company reserves the right to amend these Terms of Use at any time, and you agree to be bound by such changes. If and when changes are made to these Terms of Use, an announcement will be either made on the Site, via an email to you or via a message in the Software. Please make sure that you read and understand all such changes. If you do not agree to the changes as same may be amended from time to time, do not use the Services.
1. ELIGIBILITY AND ACCEPTANCE OF TERMS OF USE
Only parties that can lawfully enter into and form legal contracts may use the Services. If you use the Services, you expressly represent to the Company that you are at least over the age of eighteen (18) and may lawfully enter into and form binding contracts, conditions, obligations, affirmations, representations and warranties. By using the Services, you are agreeing to these Terms of Use without change, including those terms available by hyperlink. Before you use the Services, you must read and accept all of these Terms of Use. If you do not agree to any of the terms please do not use the Services. The Company reserves the right in its’ sole and absolute discretion to change the Services, including eliminating or discontinuing any feature or, with reasonable notice, to impose additional fees, charges or other conditions for use of the Services or parts thereof.
2. THE SERVICES
SOFTWARE
LiveSurface is a unique software application created by the Company that enables you to access the Company’s library of Images and through access to such library of Images allows you to visualize your design ideas while you work. LiveSurface has been created to be used in conjunction with the Images or with your own or other third-party images, artwork, web sites and services. LiveSurface may be licensed to individual users or to groups, depending on the plan you choose. Your license to use LiveSurface is subject to the PRICING and limitations set forth in these Terms of Use. The Services may not be available in all languages or in all countries. Use of the Services requires Internet access and use of certain Services in certain countries and/or in conjunction with certain third-party services may require you to accept additional terms of service and may be subject to additional fees.
You may not use LiveSurface other than as specifically provided for in these Terms of Use.
IMAGES
The Company maintains a library of images (“Images”) which you can license subject to the PRICING and limitation set forth in these Terms of Use. There are various usage types for the Images and you can select the type of usage license you desire by clicking the arrow in the item’s row. If an item does not have the desired type of usage available then please contact us for more details. You may not use an Image other than as specified above and otherwise specifically provided for in these Terms of Use.
3. LICENSE
Use of LiveSurface and the Images are subject to the following license terms:
GENERAL
The Services are licensed, not sold, to you by the Company for use only under these Terms of Use and the Company reserves all rights not expressly granted to you. The rights granted herein are limited to the Company’s and its licensors' intellectual property rights in the Services and do not include any other rights. You own the media on which the Services are utilized but the Company and/or the Company’s licensor(s) retain ownership of the Services. These Terms of Use will govern any updates or upgrades of the Services provided by the Company that replace and/or supplement the original Services, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
LICENSE GRANT - LIVESURFACE
Subject to these Terms of Use, you are granted a limited, non-exclusive license to download, install and use LiveSurface. To the extent that LiveSurface may be used to reproduce the Images or other materials, such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. You may not make LiveSurface available over a network where it could be used by multiple computers at the same time. If downloaded via computer, you may make one copy of LiveSurface in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Except as and only to the extent expressly permitted in this License or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of LiveSurface or any part thereof.
Subject to these Terms of Use, you are granted a limited, non-exclusive license to download and use the Images. Three kinds of usage types for the Images are typically available as set forth below:
• Presentation Usage: is restricted to presentation, visualization and other non-public display, including use inside a design firm and client presentation. However, presentation usage covers the display of portfolio items on a user’s own homepage. It does not cover display of these items on another site, such as a design magazine’s web site. For this kind of usage, please refer to Publication Usage. Images generated using LiveSurface fall under this kind of usage. To expand usage for LiveSurface generated images, please contact us.
• Publication Usage: is usable in print or web publications but only for editorial purposes, such as the display of a user’s portfolio in a design magazine or blog.
• Advertising Usage: is usable in print or web publications for commercial uses such as sales or promotion. Note that some types of Images may have additional usage restrictions.
• Object Series images: Object Series images of recognizable consumer products (such as laptops or mobile phones) may not be used in a manner which could damage the reputation of the product’s manufacturer.
• Outdoor Series images: Outdoor Series images are intended solely for internal use in company and private presentation (such as demonstrating to a client how their brand would look when applied to a billboard or a store window) or in editorial publication and may not be used for commercial purposes (such as being part of a final advertising image).
TRANSFER
You may not rent, lease, lend, redistribute or sublicense the Services. You may, however, make a one-time permanent transfer of all of your license rights to the Services to another party, provided that: (a) the transfer must include all of the Services, including all its component parts, original media (if any), printed materials; (b) you do not retain any copies of the Services, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Services reads and agrees to accept these Terms of Use.
4. COPYRIGHT, TRADEMARKS, PATENTS AND LINKING
COPYRIGHT
All content included on the Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of the Company or its content suppliers and protected by United States and international copyright laws. The compilation of all content on the Site is the exclusive property of the Company and protected by U.S. and international copyright laws. LiveSurface and the Images are the property of the Company or its licensors and protected by United States and international copyright laws. You agree not to access the Site or provide access to the Site by any means other than the interface that is provided by the Company for use in accessing the Site.
TRADEMARKS
LiveSurface and Context are trademarks of LiveSurface Company. All other trademarks, service marks, and logos used anywhere in the Services or Site are the trademarks, service marks, or logos of their respective owners. You may not use any trademarks of LiveSurface Company without the express written consent of LiveSurface Company or except as provided herein.
PATENTS
There are issued and pending patents on or related to the generation of certain images in LiveSurface Company’s image library and the LiveSurface software itself, including U.S. Pat. Nos. 8,325,205 and 8,866,841.
LINKING
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third-Party Materials”) or provide links to certain third-party sites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or web sites. The Company, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any Third-Party Materials or web sites, or for any other materials, products, or services of third parties. Third-Party Materials and links to other web sites are provided solely as a convenience to you. You agree that you will not use any Third-Party Materials in a manner that would infringe or violate the rights of any other party, and that the Company is not in any way responsible for any such use by you.
5. REGISTRATION, PASSWORDS AND SECURITY
You must complete the registration process by providing the Company with current, complete and accurate information as prompted by the applicable registration form. You also will choose a Password and a Login name (your email address). You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify the Company immediately of any unauthorized use of your account or any other breach of security. The Company will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by the Company or another party due to someone else using your account or password. You agree that the Company may use the information you provide to the Site according to the PRIVACY POLICY (www.livesurface.com/privacy).
6. CONTENT
NO LIABILITY
You understand that by using any of the Services, you may encounter content that you may deem offensive or objectionable. Nevertheless, you agree to use the Services at your sole risk and that the Company shall have no liability to you for content that may be found to be offensive or objectionable. Content types, descriptions and previews are provided for convenience, and you acknowledge and agree that the Company does not guarantee their accuracy.
THIRD-PARTY CONTENT
To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms applicable to the Services. In addition, Services and Third-Party Materials that may be accessed from, displayed on or linked to from the Site are not available in all languages or in all countries or regions. The Company makes no representation that such Services and Third-Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third-Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws.
COMPANY CONTENT
You agree that the Services, including but not limited to graphics, images, animations, models, textures, and editorial content, contain proprietary content, information and material that is owned by the Company and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or the Company. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Company is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
7. CONSENT TO USE OF DATA
DIAGNOSTIC AND USAGE DATA
You agree that the Company and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware specifications, information about your computer, system and application software, and peripherals, that is gathered periodically to provide and improve the Services, facilitate the provision of updates, product support and other services to you related to the Services, and to verify compliance with the terms of these Terms of Use.
IMAGE LIBRARY DATA
LiveSurface contains features that rely upon information about your use of the Image library. If you choose to share information about your Image library with the Company, you agree to the Company’s and its and agents’ transmission, collection, maintenance, processing, and use of this information, including but not limited to which surfaces you download from the Image library.
PRIVACY POLICY
At all times your information will be treated in accordance with the Company’s PRIVACY POLICY (“Privacy Policy”), which is incorporated by reference into these Terms of Use.
8. PRICING
PRICING SCHEDULE
You agree to pay the then-prevailing fee for the Services as requested through the Site as described in the Company’s published Pricing Schedule. The Company’s prices may be updated from to time by any of the following methods: online announcements, bulletins, emails, notices, announcements in invoices, and revised published price schedule. The Company is not responsible for ensuring the delivery of any updates to its pricing policies (including additions thereto or deletions therefrom) to you, and all present and future price schedules are hereby incorporated by reference into these Terms of Use.
PAYMENT OF FEES
You agree to pay for all Services obtained from the Company via credit card or other electronic payment system that is made available from time to time. By choosing to have a credit card billed directly by the Company, you hereby authorize the Company to bill this credit card for the charges incurred for use of the Company’s services. Additionally, you hereby agree that if the credit card company refuses to pay the Company for such charges incurred for use of the Company services, you shall be directly responsible for the payment of such charges, and payment shall be due immediately.
CREDITS
Transactions on the Site may be conducted using Company’s credits where appropriate. Credits can be purchased online at livesurface.com using a credit card from your account on Site. The price of credits purchased through the Site will be specified on the Site at the time of your purchase. By approving the purchase of the product or service, you authorize the Company to charge your credit card for the total amount of the purchase.
Credits may not be resold or redistributed. Credits are for use only by you. As an exception, you may temporarily authorize an associate to use your credits so long as: they are in the same organization, the same physical building, and you have approved the associates’ credit use. You may in no way authorize credit use in exchange for compensation. You shall be responsible for all credit use from your account.
REFUND POLICY AND EXPIRATION OF CREDITS
The Company shall not be obligated to grant any refund or reimbursement for removed or expired download credits. All sales and downloads are final however you may ask for a refund of your purchase within 15 days from the purchase date (images purchased using these credits will be billed at their then current cash value).
9. DISCLAIMER OF LIABILITY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THE COMPANY AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE 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, AND NON-INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY RIGHTS. THE COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY OF THE SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. INSTALLATION OF LIVESURFACE MAY AFFECT THE USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. YOU FURTHER ACKNOWLEDGE THAT THE SERVICES MAY NOT BE USED IN A MANNER WHICH MAY HARM OR DEFAME, THROUGH THE REPRODUCTION OR CREATION OF MATERIALS OR THROUGH ANY OTHER MANNER OF USE, THE MANUFACTURERS OF ANY ITEMS WHICH MAY BE DEPICTED IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES (SUCH AS THAT PROVIDED VIA THE SITE).
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.
10. INDEMNIFICATION
As a condition of use of the Services, you agree to indemnify, defend and hold harmless, the Company, any affiliated companies, and each of their respective partners, authors, licensors, officers, directors, advisors, shareholders, employees, representatives, contractors and agents, from any and all claims and damages (including attorneys' fees and court costs) arising from or relating to any allegation regarding: (a) your use of the Services; (b) any violation of these Terms of use by you; and (c) your violation of the rights of any third party, including misappropriation or infringement of the intellectual property rights of a third party.
11. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY 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, FAILURE TO TRANSMIT OR RECEIVE ANY DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES OR ANY THIRD-PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THE COMPANY 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 THE COMPANY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. TERMINATION
These Terms of Use shall remain effective so long as you use the Services; provided, however, that these Terms of Use will terminate automatically without notice from the Company if you fail to comply with any of the provisions of these Terms of Use. Upon the termination of these Terms of Use you must cease all use of the Services and destroy all copies, full or partial, of LiveSurface.
The Company and its licensors reserve the right to change, suspend, remove, or disable your access to any Services at any time without notice and for any or no reason. In no event will the Company be liable to you for the removal of or disabling of access to any such Services. The Company may also impose limits on your use of or access to certain Services, in any case and without notice or liability.
13. EXPORT CONTROL
You may not use or otherwise export or reexport the Services except as authorized by United States law and the laws of the jurisdiction(s) in which the Services are obtained. In particular, but without limitation, LiveSurface 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. By using LiveSurface, 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 LiveSurface 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.
14. GOVERNMENT END USERS
LiveSurface and the related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
15. DMCA TAKEDOWN NOTICES
DMCA Notice. As Required by the Digital Millennium Copyright Act, 17 U.S.C. Section 512 ("DMCA"), LiveSurface Company maintains specific contact information provided below, including an e-mail address, for notifications of claimed infringement regarding materials uploaded, provided or posted to the Site or Services. All notices should be addressed to the contact person specified below (our agent for notice of claimed infringement):
Agent for Notification of Claimed Infringement:
[ADD ADDRESS AND E-MAIL ADDRESS OF “AGENT.” THIS CAN BE ANYONE, INCLUDING YOU. EVENTUALLY YOU WILL NEED TO REGISTER THE AGENT WITH THE COPYRIGHT OFFICE. YOU CAN USE SAME E-MAIL ADDRESS AS IN PRIVACY NOTICE]
You may contact our agent for notice of claimed infringement specified above with complaints regarding allegedly infringing posted material and we will investigate those complaints. If the posted material is believed in good faith by us to violate any applicable law, we will remove or disable access to any such material, and we will notify the posting party that the material has been blocked or removed.
In notifying us of alleged copyright infringement, the DMCA requires that you include the following information: (i) description of the copyrighted work that is the subject of claimed infringement; (ii) description of the infringing material and information sufficient to permit us to locate the alleged material; (iii) contact information for you, including your address, telephone number and/or e-mail address; (iv) a statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law; (v) a statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf. Failure to include all of the above-listed information may result in the delay of the processing of your complaint.
16. BINDING ARBITRATION
You and Company agree to arbitrate, as provided below, all disputes between you and Company that are not resolved informally. “Dispute” includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and Company concerning the Services, the Site, these Terms of Use and/or the Privacy Policy. You and Company empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of this Terms of Use are void or voidable.
If you and Company do not resolve a dispute by informal negotiation, the dispute shall be resolved by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act (the "Act"). YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. Arbitration will be administered by JAMS Mediation, Arbitration and ADR Services (“JAMS”) in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). Proceedings that cannot be conducted through the submission of documents, by phone, or online, will take place in San Diego, California. You and Company agree to submit to the exclusive jurisdiction of the federal or state courts located in San Diego, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator, or for any appeals to the arbitrator’s decision allowed by the Act. Any such action shall be brought in the federal or state courts located in San Diego, California. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
15. GENERAL
You agree to comply with all applicable laws, rules and regulations in connection with your use of the Services. Provisions in these Terms of Use relating to limits on liability, indemnification, use and protection of information and data, payment for the Services, disclaimers of warranties as well as all other provisions for which survival is equitable or appropriate, shall survive the termination of these Terms of Use. If any provision is deemed to be unlawful or unenforceable, that shall not affect the validity and enforceability of the remaining provisions. Any failure of the Company to enforce or exercise any provision of these Terms of Use related right shall not constitute a waiver of that right or provision. The section titles used in these this License are purely for convenience and carry with them no legal or contractual effect. These Terms of use constitute the entire agreement between the parties with respect to the use of Services and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of these Terms of Use will be binding unless in writing and signed by the Company.