End User License Agreement (EULA) for Cloud Software
END USER LICENSE AGREEMENT
PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE PROVIDED BY DATACOLOR, INC. BY DOWNLOADING, INSTALLING AND USING THE SOFTWARE, YOU, THE LICENSEE (“YOU” OR “YOUR”), AREAGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE AND CLICK INSTEAD “DISAGREE/DECLINE”.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
Capitalized terms in this Agreement will have the following meanings:
“Agreement” means this End User Software License Agreement between Datacolor, Inc., as licensor (“Datacolor” or “We”) and You, as licensee;
“Licensed Software” means the certain commercial software product(s) being provided to You under this Agreement, including online software, platform, website and executable program modules thereof, as well as related documentation and computer readable media;
“End User Data” means any and all data entered or uploaded by You through the use of the Licensed Software;
“Datacolor Data” means any and all information, including, but not limited to, data, analyses, measurements, reports, trends, and metrics, generated from, derived from, based on or related to End User Data.
2. SOFTWARE LICENSE, RIGHTS & RESTRICTIONS
In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a revocable, non-transferable, non-exclusive license to use the Licensed Software solely in connection with Datacolor services and/or hardware and in accordance with the terms of this Agreement.
The Licensed Software is licensed, not sold, to You by Datacolor for use only under the terms of this Agreement and subject to Your prior acceptance of this Agreement. As licensor, Datacolor reserves all rights not expressly granted to You pursuant to this Agreement.
Without limiting the generality of the foregoing, You will use the Licensed Software only in accordance with the specifications provided for the Licensed Software and for purposes set forth herein, and, further, You expressly agree that You DO NOT have the right to:
own title, or to transfer title to the Licensed Software to another party;
distribute, or sublicense or otherwise provide copies or any rights in relation to the Licensed Software to any third party;
pledge, alienate or otherwise encumber the Licensed Software to any third party;
modify, enhance, reverse-engineer, decompile, disassemble or create derivative works of the Licensed Software.
Datacolor reserves the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Datacolor of any known violations of such restrictions and covenants.
Upon execution of this Agreement, Datacolor will:
permit You to access, or download a copy of the most current version of the Licensed Software for Your use under this Agreement; and
from time to time provide You with ongoing updates to the Licensed Software during the term of the Agreement as considered needed by Datacolor. In each such case, Datacolor will automatically provide the necessary updates.
3. COPYRIGHT AND TRADEMARKS
The Licensed Software, including any documentation, specifications, media, packaging and illustrations, is copyrighted and constitutes the valuable intellectual property of Datacolor (“Copyrighted Materials”). The Licensed Software is protected under the copyright laws of the United States and international treaty provisions. Outside of Your use of the Licensed Software, You have no right to:
license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit such Copyrighted Materials;
modify, make derivative works of, disassemble, reverse compile or reverse engineer the Copyrighted Materials;
access the Copyrighted Materials in order to build a similar or competitive product or service to that offered by the Licensed Software; or
copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means (except as expressly permitted by Datacolor), the Copyrighted Materials.
Certain logos, product names, service marks and trademarks owned by Datacolor or other third parties may be contained within and/or displayed by the Licensed Software upon Your access to the Licensed Software, as well as in any related printed or electronic materials that you may have access to. You have no license or right to use such marks outside of use of the Licensed Software. To the extent that You provide any of Your trademarks or other identifying marks to Datacolor for use with the Licensed Software, You hereby grant DataColor a revocable, non-transferable, non-exclusive license to use such marks with or by the Licensed Software.
4. COLLECTION AND USE OF YOUR INFORMATION
5. OWNERSHIP AND USE OF DATA
All ownership rights in and to the Licensed Software shall remain exclusively with Datacolor and its licensors, as applicable. Access to the Licensed Software is provided to You only to allow You to exercise Your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to You.
6. WARRANTY AND INDEMNITY
Warranty. Datacolor warrants that it is the owner of the Licensed Software and has the right and authority to grant this license to the Licensed Software. Datacolor further warrants the Licensed Software, under normal use, will perform materially in accordance with the applicable documentation located on Datacolor’s website for the Licensed Software for a period of one (1) year (the “Warranty Period”). You will notify Datacolor of any warranty deficiencies within 30 days of discovery of any defects in the Licensed Software during the Warranty Period. To the maximum extent permitted by applicable law, the entire liability of Datacolor, and Your sole and exclusive remedy, with respect to any defect reported to Datacolor within the Warranty Period which causes and continues to cause a system-critical disruption of Your business operations, shall be limited to either, at Datacolor’s sole option (i) correction or circumvention support of the reported defect based on the warranty claim, (ii) replacement of the defective Licensed Software, or (iii) if support or replacement is not practicable in Datacolor’s sole determination, refund of the pro-rata portion of the prepaid software license fees paid for the defective Licensed Software, if any; provided, however, that You shall promptly notify Datacolor of any defects discovered and shall furnish to Datacolor adequate supporting documentation and details to substantiate and to assist Datacolor in the identification and detection of such defect. No other verbal or written information provided by Datacolor will create a warranty or in any way increase Datacolor’s liability, and You accordingly will not rely on such information.
Indemnity by Datacolor. DataColor warrants that the Licensed Software does not infringe on any currently existing and enforceable United States patent, copyright or trademark, and hereby agrees to indemnify and hold You harmless in respect of any damages arising out of any claim, demand or action alleging that Your use of the Licensed Software violates or infringes the copyright, patent or other intellectual property right of any third party, provided that you provide reasonable cooperation in preparing a defense by Datacolor against any such claim. Datacolor shall not indemnify and hold You harmless in respect of any damages arising out of any claim, demand or action alleging that Your use of the Licensed Software in combination with third party products or services not provided to You by Datacolor violates or infringes the copyright, patent or other intellectual property right of any third party.
Indemnity by Licensee. You, at Your sole cost and expense, will indemnify, hold harmless and defend Datacolor, its parent company, and each of its respective directors, officers, employees, agents, successors and assigns (collectively, the “Datacolor Affiliates”), against any claim, including reasonable attorney’s fees, to the extent based upon or in connection with any breach or alleged breach of Your representations, warranties, covenants, agreements or obligations hereunder,
DISCLAIMER. EXCEPT AS PROVIDED IN THIS SECTION 6, WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES, OR ACCEPT ANY CONDITIONS. WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY AND REMEDIES
LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE LICENSED SOFTWARE REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY THE LICENSEE IN THE PREVIOUS 12 MONTHS. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM). NEITHER YOU NOR DATACOLOR MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
Dispute Resolution. You acknowledge that Datacolor possesses valuable confidential and proprietary information, including trademarks, trade secrets, business practices and financial information, which would be damaging to Datacolor if revealed in open court. You further acknowledge and agree that it is preferable to resolve all disputes between the parties confidentially, individually and in an expeditious and inexpensive manner. Accordingly, You acknowledge and agree that private dispute resolution is preferable to court actions. Before commencing any arbitration in the manner set out in this Section 8, the parties shall first attempt to resolve any dispute or differences by way of good faith negotiation. The good faith negotiation shall commence by each party communicating its position regarding the complaint, claim, dispute or controversy to the other party, as well as a proposed resolution to the dispute. The parties shall then make a good faith effort to negotiate a resolution of the complaint, claim, dispute or controversy. Neither party shall commence any arbitration proceedings unless and until the failure of such good faith negotiations.
Arbitration. Any claim, dispute or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration against Datacolor or any Datacolor Affiliates (collectively, for purposes of this paragraph, “Licensor Group”) arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Licensor Group’s advertising or any related purchase which is not able to be resolved between the parties after good faith efforts have been made shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”), under its rules and any specific procedures then in effect, by a panel of three (3) arbitrators: one arbitrator selected by Datacolor, a second arbitrator selected by You and a third arbitrator selected by the first two arbitrators. Each party shall be responsible for paying its own AAA filing, administrative and arbitrator fees in accordance with AAA rule, but the prevailing party may seek recovery of such costs from the other party. The arbitration will be limited solely to the dispute or controversy between You and Licensor Group. The determination of the arbitrator in such proceeding shall be final, binding and non-appealable, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
8. SUCCESSORS AND ASSIGNS
You may not assign any rights and duties under this Agreement to any party at any time. This Agreement will ensure to the benefit of and will be binding on Datacolor and its respective successors and permitted assigns.
In the event of corporate merger or divestiture, Datacolor will have the right to transfer and assign its rights hereunder to any third party (the “Assignee”), without notice to You, and You further agree that the Assignee may modify the terms contained in this Agreement, as well as add additional terms, which will then become binding upon You based on your continued use of the Licensed Software.
Term. The term of this Agreement will commence on the date of Your first download, installation or use of the Licensed Software, which evidences Your agreement to these terms, and shall continue for the duration of Your use of the Licensed Software or until either You or Datacolor terminates this Agreement in accordance with this Section 10.
Termination. This License is effective until terminated either by You or Datacolor. Your rights under this License will terminate automatically without notice from Datacolor if You breach or fail to comply with any of the terms of this License. Upon termination of the License, You shall cease all use of the Licensed Software, and destroy all copies, full or partial, of the Licensed Software in Your possession.
Captions. The Article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
Entire Agreement. This Agreement constitutes the entire agreement of the Parties.
Force Majeure. Notwithstanding anything herein to the contrary, Datacolor shall not be liable for any delay or failure in performance caused by circumstances beyond its reasonable control.
Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither Datacolor nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
Notices. All notices and communications required or permitted under this Agreement will be in writing and may be sent electronically, return receipt requested, or by overnight delivery service or registered or certified mail, postage prepaid, return receipt requested, to Datacolor at the addresses provided below or to such other address as Datacolor may from time to time specify by notice to You through the Licensed Software:
Governing Law. This Agreement shall be interpreted and enforced under and in accordance with the internal laws of the State of New Jersey without reference to any principles that would require the application of the laws of another jurisdiction.
Revisions to this Agreement. Datacolor may modify, update or revise the terms of this Agreement at any time by updating these terms and by providing notice to you of such changes through the Licensed Software.