1. License to use.
1.1. Subject to the terms and conditions of this Agreement, the Company grants the Licensee a non-exclusive, non-transferable, non-sublicensable, revocable, limited license without license fees to use internally the Product complete and unmodified for the sole purpose of evaluation. The Licensee is authorized to load, execute, and keep the Product on a computer storage device or on a network server under its control and solely for internal use; and to copy the Product solely for the purpose of installing it on the Licensee computers and for backup storage, solely for its internal use in connection with its use of the Product.
1.2. All licenses and credit rights granted by the Company to the Licensee or the Client pursuant to this Agreement will immediately and automatically terminate if (i) at any time the Licensee or the Client does not timely comply with any obligation under this Agreement, or (ii) upon termination of this Agreement. In such case, the Licensee of the Client will immediately stop using the Product and the Credits and promptly remove the Product and the Credits from all Licensee or Client equipment.
2.1. Without prejudice to the other restrictions applicable under this Agreement or the Applicable Law, the Licensee shall not:
a) Reproduce or copy the Product, except for back-up copies made only for its personal usage and which cannot be provided to any third parties and for copies which are needed for the proper functioning of the Product (e.g. installation copies) ;
b) Use any part of the Product to develop any software or any products or services or create derivative works of the Product other that images and audiovisual works;
c) Give the Product away in any way (assign, sublicense, loan, sell, charge, distribute, share, transfer, pledge, lease exchange, donate, rent or other) to any third parties. The Licensee is not allowed to sell, transfer, assign or grant access to his/her licensed copy to a third party or otherwise make the Product or any password, key, or other access code for the Product available to any third party;
d) Make any translation, adaptation, arrangement and any other modification of the Product or make any reproduction, distribution, communication, display, or performance to the public of the results of such acts;
e) Adapt, modify decompile, disassemble, alter, reverse compile, reverse assemble or reverse engineer the Product or otherwise attempt to discover the source code of the whole or any part of the Product, unless and only to the extent that applicable law expressly prohibits this restriction;
f) Replace any part of the Product by the Licensee’s own plug-in or software which would be compatible with other parts of the Product and that would circumvent the licensing fees that should be paid to the Company, such as, for example, a new volumetric player directly or indirectly compatible with the output formats of other parts of the Product;
f) Remove, minimize, block, alter or modify any titles, logos, trademarks, copyright and patent notices, digital watermarks, disclaimers, or other legal notices that are included in the Product;
g) Circumvent the license management software or the watermark removal procedure; defeat or work around any access restrictions or encryption in the Product or in the watermarked Images, unless and only to the extent that applicable law expressly prohibits this restriction;
h) Use any watermarked image for commercial purposes.
i) Not by itself or with others participate in any illegal, deceptive, misleading or unethical practices and activities, which may be detrimental to the Company or the Product.
2.2. The Licensee and the Client must provide the Company with any information needed for the accurate completion of the Agreement’s objectives.
2.3. The Licensee must keep confidential any of the Company’s trade secrets, as well as any other information the Licensee may become aware in relation with the performance of this Agreement, except in cases where such information is required by Applicable Law.
2.4. The Licensee is entitled only to the rights specified in Article 1 of this Agreement. All rights not expressly granted to the Licensee in this Agreement are reserved to the Company.
2.5. This Agreement does not entitle the Licensee to any upgrades, updates or maintenance, technical, or other services for the Product, which the Company does not warrant the availability and which the Licensee may be required to purchase separately as the case may be.
If the Licensee or the Client provide the Company with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by the Licensee for the Product ("Feedback"), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary the Licensee or the Client may include in any accompanying communication), and the Company shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Product or any other hardware, software or services from the Company. The Licensee and the Client hereby grant the Company a perpetual, irrevocable, transferable, licensable, sub-licensable, non-exclusive license without license fees under all rights necessary to so incorporate and use Licensee’s Feedback or Client’s Feedback for any purpose, including to make and sell products and services.
4. Reserve of rights.
4.1. Subject to the provisions of this Agreement, the Company retains all right, title and interest in and to the Intellectual Property Rights (including but not limited to copyrights, patents and trademarks) related to the Product, including the right to transfer or license such Intellectual Property Rights to third parties for any purpose. In particular, the Company’s software is copyrighted and title to software and all associated Intellectual Property Rights is retained by the Company.
4.2. Nothing in this Agreement shall be deemed or implied to be, and the Parties disclaim all implied rights to, the grant by the Company to the Licensee of any license, right, title or interest in the Company’s products, services, Intellectual Property Rights, any technology or know-how, operating procedures, marketing materials or strategies, intangibles, material or proprietary rights or any other tangible or intangible property, except as are expressly set forth in this Agreement. In particular, no rights (including any and all Intellectual Property Rights) of the Company are being transferred or assigned to the Licensee or to the Client under this Agreement.
4.3. The Company shall remain the sole owner of all information related to the Product, obtained or developed in the course of performance of this Agreement and the related Intellectual Property Rights. The Company has the right to make any changes, improvements, corrections, updates, upgrades or other modification of the Product it considers appropriate, at any time.
4.4. The license granted under this Agreement is not a sale of the Product and this Agreement does not entitle the Licensee or the Client to any rights to patents, copyrights, trademarks, service marks, trade secrets, confidential information or any other rights or license with respect to the Product. The Licensee and the Client agrees to hold the Product in confidence and to take reasonable measures to prevent unauthorized copying or disclosure of the Product. The Licensee and the Client shall not remove or modify any copyright symbols, trademarks, labels, property notices and technical protection measures on any and all copies of the Product.
4.5. If the Licensee or the Client learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity by a third party with respect to any Intellectual Property Rights related to the Product, (an “Infringement”), the Licensee or the Client shall promptly notify the Company in writing and shall promptly provide the Company with available evidence of such Infringement. The Company has the right, but not the obligation, to institute, prosecute, and control any action or proceeding with respect to Infringement of any Intellectual Property Right related to the Product.
5. Limitation of liability.
To the extent permitted by law, the Company will not be liable for indirect, incidental, special, consequential, punitive or exemplary damages (including any loss of revenue, profits, goodwill, use or data) arising in connection with this Agreement or the Product or the Credit or the Image even if the Company has been advised of the possibility of those damages. Further, the Company total aggregate liability and exclusive remedy for any matter arising in connection with this Agreement or the Product or the Credit or the Image shall be, at the Company’s option, limited to attempt to correct or work around errors, to replace the Product or to terminate the Agreement. In no event shall the Company’s liability to the Licensee or to the Client, whether in contract, tort (including negligence), or otherwise, exceed the amount of EUR 100,- (one hundred euros). In all cases, the Company will only be liable in case of gross negligence or willful misconduct or any other case which may not be excluded or limited under the Applicable Law.
6.1. The Product and the Credit are provided on a “as is” and “as available” basis without warranties of any kind neither expressed nor implied. The Licensee’s use of the Product is at the Licensee’s sole risk. The Client’s use of the Credit is at the Client’s sole risk.
6.2. The Company does not make any representation or warranty of any kind, whether express, implied, statutory or otherwise with respect to the Product and the Credit. Unless expressly set forth in this Agreement, the Company disclaim to the fullest extent permitted by Applicable Law all warranties with respect to the Product and the Credit, whether in fact or in law, whether express or implied, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any warranties arising out of any course of dealing, performance, or trade usage. The Company shall not be liable to any Licensee, to any Client and to any third party for any modification, price change, involuntary suspension or discontinuance of the Product, the Credit or any other item provided or otherwise made accessible to the Licensee or to the Client under this Agreement.
6.3. In particular, the Company shall not be responsible or liable for any errors, inaccuracies, or service interruptions, power outages or system failures of the Licensee’s, the Client’s or Third Party’s infrastructures in relation with the Product and the Credit. The Company does not warrant that the Product and the Credit will meet the Licensee’s and the Client’s requirements or that the operation of the Product or of the Credit will be uninterrupted or error free, or that defects in the Product or the Credit will be corrected. The Company does not warrant the correctness or accuracy of the results obtained from the use of the Product and of the Credit.
6.4. No advice or information obtained by the Licensee and by the Client from the Company will create any warranty not expressly stated in this Agreement. The Company shall not be responsible or liable for any direct, indirect, incidental, special, consequential or exemplary compensation, reimbursement, or damages including damage for loss of profits, prospective profits or revenue, anticipated sales, goodwill or other benefits, data, use or any other intangible losses, any investments, expenditures, or commitments by the Licensee or by the Client (even if the Company has been advised of the possibility of such damage) in connection with this Agreement or the Licensee’s or the Client’s use of or access to the Product or to the Credit, or any termination or suspension of this Agreement or resulting from: (i) the misuse or the inability to use the Product or the Credit; (ii) the impossibility to use the Product or the Credit or their non—availability (iii) unauthorized access to or alteration of the Licensee’s or the Client’s transmissions or data.
6.5 Without prejudice to the other provisions of this Agreement, the Licensee and the Client acknowledge that the Product and the Credit are developed for general use in a variety of systems and applications. The Licensee and the Client acknowledge that the Product and the Credit have not been developed to meet the Licensee’s or the Client’s individual requirements and that it is therefore the Licensee’s and the Client’s responsibility to ensure that the facilities and functionality of the Product and the Credit meet such requirements. The Product and the Credit are not developed or intended for use in a specific system or application or in any inherently dangerous applications, including applications that may create a risk of personal injury. If the Licensee or the Client use the Product in dangerous applications, then the Licensee or the Client shall bear all risks associated with such use. The Company disclaims any express or implied warranty of fitness for such uses.
6.6. The Licensee and the Client are solely responsible for acquiring, servicing, maintaining and updating, at their sole expenses, their own equipment (including hardware, computers and appropriate telecommunications services), which will allow the Licensee and the Client to access and use the Product and the Credit. The Licensee and the Client shall make sure that their equipment are adaptable to, compatible with and suitable for the use of the Product and the Credit. Without prejudice to the other limitation of liability included in this Agreement, the Company does not warrant the compatibility of the Product and of the Credit with all types of equipment and the Product and the Credit are not compatible with all equipment.
7.1. The Licensee and the Client shall be solely responsible and liable for their use of the Product and of the Credit.
7.2. The Company will have no liability for any use of the Product and of the Credit by the Licensee and by the Client or for any of the Licensee’s or the Client’s claims or for any claim by Third Parties relating to these matters. The Licensee and the Client hereby agree to defend, indemnify, hold harmless and release the Company, the Company’s Affiliates, licensors and partners, and their respective owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives, from and against all claims, damages (whether direct, indirect, incidental, consequential, punitive, exemplary or otherwise) losses, liabilities, costs, and expenses (including attorneys' fees) of every kind and nature, known and unknown, arising in connection with or in any way connected with (i) any use or misuse that the Licensee or the Client make of the Product (ii) the Licensee’s or the Client’s violation of any term or condition of this Agreement or the Applicable Law; (iii) any act or omission by the Licensee, by the Client, or the Licensee’s or the Client’s owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives, which constitutes recklessness, gross negligence, or willful misconduct on the part of the Licensee, the Client or the Licensee’s or the Client’s owners, managers, members, past and present employees, officers, directors, successors, assigns and representatives.
8.1. The Client will have to open a user account and provide some personal/company data to be able to buy Credits. Licensee may have to open an account and provide some personal/company data to be able to use the Product.
8.2. The setting up of an account obliges the Licensee and the Client to: (i) provide its full legal name, a valid email address, and any other information reasonably required in order to complete the signup process; (ii) be 18 years of age or older; (iii) be a human. Accounts registered by "bots" or other automated methods are not permitted; (iv) provide true, accurate, current and complete information and maintain and promptly update the registration data to keep it true, accurate, current and complete at all time; (v) comply with this Agreement. The Licensee and the Client can access and update the information they have provided the Company with, including their account settings by logging on their account on the Company’s website.
8.3. If the Licensee or the Client provide the Company with any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate the Licensee’s or Client’s access to and use of the account, the Product and the Credits and refuse any and all of the Licensee’s or Client’s current or future access to and use of the account, the Product and the Credits.
8.4. The Licensee and the Client are solely responsible at all times: (i) for maintaining the security of their accounts and passwords. The Company cannot and will not be liable for any loss or damage arising from the Licensee’s or the Client’s failure to comply with this security obligation; and (ii) for all content posted and activity that occurs under the Licensee’s or the Client’s account.
The Licensee and the Client must take all necessary steps to ensure that their password is kept confidential and secure and should inform the Company immediately of any possible misuse of their accounts and passwords or any security incident related to their accounts and passwords or if they have any reason to believe that their password has become known to anyone else, or if the password is being, or is likely to be used in an unauthorized manner.
8.5. The Company reserve the right to refuse service, terminate accounts or remove or edit content the Licensee or the Client is in breach of applicable laws, this Agreement or any other applicable terms and conditions, guidelines or policies.
8.6. Notwithstanding anything to the contrary in this Agreement, the Company has the right, at all time and without notifying the Licensee or the Client, to change, remove and delete or otherwise destroy any and all content included in the Licensee’s or Client’s account, the Licensee’s or Client’s account itself and all data related to the Licensee’s or Client’s account. All information contained in the Licensee’s or Client’s account shall not be recovered after its modification, removal, deletion or destruction. The Licensee and the Client agree and acknowledge that the Company has no obligation to retain the information included in their accounts and that the Company may delete the information included in their accounts and their account at all time.
This Agreement is effective until terminated. The Licensee and the Client may terminate this Agreement at any time by permanently and completely destroying all copies of the Product and of the Credit. This Agreement will terminate immediately without notice and without compensation from the Company if the Licensee or the Client fails to comply with any provision of this Agreement. The Company may terminate this Agreement at any time, for any reason, without notice and without compensation by notifying the Licensee or the Client. Either party may terminate this Agreement immediately, without notice and without compensation, should any part of the Product become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. Upon termination, for whatever reason, the Licensee and the Client must immediately stop using the Product and permanently destroy all copies of the Product under its control. In case of termination of this Agreement, the Company shall not refund any pre-paid fees and any Credit paid by the Licensee or by the Client prior to the termination date, even though the services have not been performed as a result thereof.
This Agreement shall not be assignable by the Licensee or by the Client to any Third Party hereto without the written prior consent of the Company. The Company may assign this Agreement, without the written prior consent of the Licensee and of the Client to any Third Party or an entity that acquires all or substantially all of the business or assets of the Company to which this Agreement pertains (whether by merger, reorganization, acquisition, sale or otherwise), and agrees in writing to be bound by the terms and conditions of this Agreement. Any attempt by the Licensee or by the Client to assign, sublicense or transfer this Agreement or the rights and obligations under this Agreement shall be null and void. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the Parties.
Unless otherwise provided for into this Agreement, the Agreement shall not be amended, altered or changed by the Licensee or by the Client unless such amendment, alteration or change has been previously approved by written agreement duly signed by the Company. This Agreement may be amended at any moment by the Company.
12.1. Performance Warranty. Each Party hereby acknowledges and agrees that it shall be responsible for, and irrevocably, absolutely and unconditionally guarantees, the full and timely performance as and when due under, and observance of all the covenants, terms, conditions and agreements set forth in, this Agreement by any Third-Party consultants/contractors working on such Party’s behalf.
12.2. Force Majeure. No Party shall be held liable or responsible to the other Party nor be deemed to be in default under, or in breach of any provision of, this Agreement for failure or delay in fulfilling or performing any obligation of this Agreement when such failure or delay is due to an event of Force Majeure, and without the fault or negligence of the Party so failing or delaying. For purposes of this Agreement, events of Force Majeure are defined as causes beyond the reasonable control of the Party, including acts of God; acts, regulations, or laws of any government; war; civil commotion; destruction of production facilities or materials by fire, flood, earthquake, explosion or storm; labor disturbances; epidemic, failure of public utilities or common carriers, internal or external strikes, social disorders, acts of terrorism, public disasters, floods, fires, default of supplier and sub-contractor, disturbances beyond the reasonable control of the Company and its subcontractors caused by power failure, network providers, Internet general failure, failure or breakdown of telecommunications, and/or any other event or circumstance beyond the control of the Company and its hosting provider (“Force Majeure”).
12.3. Waiver. No Party may waive or release any of its rights or interests in this Agreement except in writing. The failure of a Party to assert a right under this Agreement or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition. No waiver by a Party of any condition or term in any one or more instances shall be construed as a continuing waiver of such condition or term or of another condition or term, nor shall it operate as a discharge of such covenant, agreement or condition or render the same invalid, or impair the right of any of the Parties, their representatives, successors, or permitted assigns to enforce the same in the event of any subsequent breach or breaches by the other Party, its representatives, successors or permitted assigns.
12.4. Severability. If any provision of this Agreement should be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, the provision will remain applicable to the maximum extent permitted by the law and the Company shall replace the invalid provision by a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions of this Agreement shall remain in full force and effect in such jurisdiction and shall be literally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
12.5. Entire Agreement. This Agreement sets forth all the covenants, promises, agreements, warranties, representations, conditions and understandings between the Parties and supersedes and terminates all prior agreements and understanding between the Parties. There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as set forth in this Agreement.
12.6 Headings. Headings used in this Agreement are for convenience only and shall not in any way affect the construction of or be taken into consideration in interpreting this Agreement.
13. Applicable Law and Jurisdiction.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) or with a breach of it, including any dispute and discrepancy about the effect, interpretation, termination, performance, or failure to execute it shall be governed by:
13.1 If the Licensee is a company registered in or an individual living in the United States, Canada, or Latin America, this Agreement shall be governed by the laws of the State of California, USA, without regard to conflict of laws provisions; the Licensee and Company agree to submit to exclusive jurisdiction and venue in the state or federal courts in Santa Clara District Court of California, USA, for any and all disputes, claims and actions arising from or in connection with this Agreement.
13.2 If the Licensee is a company registered in or an individual living in the Asia Pacific countries, this Agreement shall be governed by the laws of Singapore, without regard to conflict of laws provisions; the Licensee and Company agree to submit to exclusive jurisdiction and venue in the competent courts in Singapore city of Singapore, for any and all disputes, claims and actions arising from or in connection with this Agreement.
13.3 If the Licensee is a company registered in or an individual living in Taiwan (R.O.C.), this Agreement shall be governed by the laws of Taiwan (R.O.C.), without regard to conflict of laws provisions; the Licensee and Company to submit to exclusive jurisdiction and venue in the first district court in Taipei, Taiwan (R.O.C.), for any and all disputes, claims and actions arising from or in connection with this Agreement.
13.4 If the Licensee is a company registered in or an individual living in a country or territory not listed in paragraphs 12.1 to 12.3, this Agreement shall be governed by the laws of Germany, without regard to conflict of laws provisions; the Licensee and Company agree to submit to exclusive jurisdiction and venue in the competent courts in Berlin of Germany, for any and all disputes, claims and actions arising from or in connection with this Agreement.
13.5. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded in all cases.