LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this “Agreement”)
is made by and between ANDERSSON TECHNOLOGIES LLC, a Pennsylvania
limited liability company (“Licensor”), and the individual or
entity desiring to install the software included with this Agreement or in
respect of which this Agreement is presented (“Licensee”). By
clicking the “I Agree” or similar button or in the absence of such button, by
installing the copy of the software included with this Agreement or in respect
of which this Agreement is presented to Licensee (“Licensed Product”,
the “Software”), Licensee agrees to and accepts each of the
terms, conditions and provisions of this Agreement. If you do not agree to and
accept each of the terms, conditions and provisions of this Agreement, you may
not install or use, and must delete from your computer, the Software (and all
other materials accompanying the Software).
1.
Grant of License.
License is granted as specified in the
appropriate one of clauses (a)-(e) depending on the type of license purchased,
and in (f) in each case.
(a)
Seat License. Subject to the terms and conditions of this
Agreement, Licensor grants Licensee a limited, perpetual, non-exclusive license
to the object code version of the Software that permits Licensee to use the
object code version of the Software on a single physical workstation identified
by Licensee. Licensee may also install and use the Software on a second,
portable, workstation, provided both are owned and used exclusively by the same
individual only for the benefit of the same business entity.
(b)
Floating License. Subject to the terms and conditions of this
Agreement, Licensor grants Licensee a limited, perpetual, non-exclusive license
to the object code version of the Software that permits Licensee to use the
object code version of the Software on one of Licensee’s physical or virtual
workstations at a time, as managed by the license manager. The license may
float from one workstation to another within the same time zone, subject to
policies listed on Licensor’s website and implemented by the license manager.
(c)
Managed Seat License. Subject to the terms and conditions of this
Agreement, Licensor grants Licensee a limited, perpetual, non-exclusive license
to the object code version of the Software, permitting Licensee to designate
one user for the object code version of the Software on one of the Licensee’s physical
or virtual workstations at a time, as managed by the license manager. The user
may use the license on one workstation at a time within a timezone. The license
may be moved to a different user and/or time, subject to policies listed on
Licensor’s website and implemented by the license manager.
(d)
Managed Temporary License. Subject to the terms and conditions of
this Agreement, Licensor grants Licensee a limited, non-exclusive license, for
a specific start date through a specific end date, to the object code version
of the Software, permitting Licensee to designate one user for the object code
version of the Software on one of the Licensee’s physical or virtual
workstations at a time, as managed by the license manager. The user may use the
license on one workstation at a time within a timezone. The license may be
moved to a different user and/or time zone, subject to policies listed on
Licensor’s website and implemented by the license manager.
(e)
License Manager. Subject to the terms and conditions of this
Agreement, Licensor grants Licensee a limited, perpetual, non-exclusive license
to the object code version of the Software that permits Licensee to use the
object code version of the Software on a single physical or virtual computer
identified by Licensee.
(f)
Licensee may also use the documentation included with the Software (such
as help files, release notes, and readme.txt files) (collectively, “Documentation”)
as is reasonable and necessary for Licensee to use the Software. If the
distribution of the Software includes sample still and/or motion images
(collectively, “Sample Imagery”), Licensee may use such imagery
for testing purposes only during the term of this Agreement. The Software,
Documentation and Sample Imagery are collectively referred to as the “Licensed
Product”.
2.
Fees; Payment. In consideration of the grant
of license rights under this Agreement, Licensee agrees to pay Licensor the
fees established by Licensor at the time Licensee downloads or otherwise
acquires the Licensed Product. Unless otherwise agreed in writing by Licensor,
payment is due at the time Licensee downloads or otherwise acquires the
Licensed Product. If Licensee fails to pay the amount due by the due date or
if a payment made by check or credit card is refused or returned unpaid or
stopped or disputed by Licensee, Licensor has the right to either (a) charge
interest on the unpaid amount at the rate of 1.5% per month (or if lower, the
highest rate permitted by law) from the due date until the date paid in full or
(b) terminate this Agreement and Licensee’s use of the Licensed Product
immediately. All payments shall be in United States dollars.
3. Support
and Maintenance. During the one (1) year period following the date
that Licensee first downloads or acquires the Licensed Product, Licensee is
entitled to support and maintenance for such copy of the Licensed Product in
accordance with Licensor’s support and maintenance policy in effect on the date
that Licensee first downloads or acquires the Licensed Product, as posted on
Licensor’s website. On an annual basis, Licensee may continue to receive
support and maintenance from Licensor in respect of the Licensed Product in
accordance with Licensor’s then-current support and maintenance policy, as posted on Licensor’s website, provided that
Licensee pays Licensor the then-current fee for such support and maintenance. Licensor reserves the right to add, change, or withdraw
features, performance, pricing, licensing terms, or other characteristics of
the Software at any time. Notwithstanding the foregoing, Licensor may
refuse to renew support and maintenance support of the Licensed Product (or a
particular version thereof). Any copy of any bug fix, patch, version or other
release of the Licensed Product obtained in connection with support and
maintenance rendered under this Agreement shall be considered Licensed Product
for all purposes of this Agreement.
4. Acknowledgements.
Licensee acknowledges that: (a) the Licensed Product is and shall remain the
exclusive property of Licensor and Licensor’s successors and assigns; (b)
Licensee has no right or interest in the Licensed Product other than as
expressly granted in this Agreement; and (c) any data, analytics, feedback or
suggestions for improvements or enhancements given by Licensee to Licensor,
including by means of automated upload features, regarding the Licensed Product
(collectively, “Feedback”) does not give Licensee any rights in
any release of the Licensed Product or require Licensor to implement Licensee’s
suggestions or other requirements in any release of the Licensed Product.
Licensee hereby irrevocably assigns and transfers to Licensor all of Licensee’s
right, title and interest in and to Feedback and all intellectual property
associated therewith without any claim for any compensation from Licensor.
5. Transfer
of License; Copy Protection. Licensee may not rent, loan, transfer,
sublicense, lease, share, float, or otherwise distribute or operate the
Licensed Product to or for the benefit of any third party. Licensee may not
assign all or any part of its rights or obligations under this Agreement
without Licensor’s prior written consent and any attempt to the contrary will
be void and a material breach of this Agreement. Licensor may withhold such
consent in its sole discretion. Licensee shall not disclose, assign or
transfer any copy control information (such as serial numbers or license keys)
or attempt to defeat or circumvent any copy protection system or software
intended to control installation, copying and other use of the Licensed
Product. When transferring a license: (a) License must not have been rendered
ineffective by being exchanged for an upgraded product version; (b) Licensee must
transfer all copies of the Licensed Product to the transferee; (c) Licensee must
permanently delete and cease all use of the Licensed Product and license data
so transferred; (d) Transferee must assume all of Licensee’s obligations under
this Agreement in a written agreement in form and substance acceptable to
Licensor and duly executed by the transferee; and (e) Transferee must request
and install new transferee-specific license data from Licensor.
6.
Other Requirements and Restrictions.
(b)
Customer shall not disclose to any third party any information
concerning any user name, password, license data, or URL provided to Licensee
to facilitate downloading or use of any copy of the Licensed Product.
(d)
Licensee may not use virtualization, terminal or X servers, spoofed
server data, or other technical means to make Software available to additional
users via separate computers, terminals, or monitors. By way of example without
limitation, regular Seat licenses must not be installed on virtual machines; login
identifiers must identify a specific unique using person for Managed Seat and
Managed Temporary license types; and license server and user machines must have
accurate clock and timezone settings.
(e)
Licensee may not use Sizzle, SyPy or other scripting technology to
create systems that use Software to process shots without artist supervision;
create replacement user interfaces that allow Software to be remoted or
virtualized, or shared between users who are not license holders; or create
services that process and return shots submitted by remote or third parties
through Software without local artistic supervision.
(f)
Floating licenses. Licensee may install floating license server
only on the mutually-designated machine. Licensee may not use virtualization or
other technical means to circumvent license server node locking. Licensee may
not return replaced servers or license files to service in lieu of, or in
addition to, currently-designated server(s) and license file. Licensee may not
reverse-engineer license-server communications protocols; reverse-engineer,
create, or alter license files.
(g)
License manager requires internet access when running on a virtual
machine, and for full functionality on physical or virtual machines.
(h)
Licensed Product must be removed from a computer if the computer is sold,
transferred, returned due to lease termination, or otherwise passes out of the
Licensee's control.
(i)
If the Licensed Product is an update to a previous version of the
Software, you must possess a valid license to the previous version in order to
enter this agreement and use the Licensed Product. The new license is provided
as an exchange for the previous one. By updating, you agree to terminate all
usage of the previous license(s).
(j)
Licensee may not distribute sub-components of the software, including
without limitation images, sounds, libraries, and scripts.
7. Copyright.
(a)
The Licensed Product contains proprietary material of Licensor and/or
material that other software and/or information suppliers have licensed to
Licensor for use in the Licensed Product. This material is protected by
copyright and other laws respecting proprietary rights. Licensor and/or the
respective licensors retain all rights in the Licensed Product, including
(without limitation) all copyright and other proprietary rights worldwide in all
media. Licensee may not use the Licensed Product except as expressly permitted
under this Agreement and under U.S. and/or other applicable copyright laws.
(b)
While Licensee may make a reasonable number of copies of the Licensed
Product solely for archival/back-up purposes, no part of the Licensed Product
may be used, reproduced or duplicated in any medium or format beyond the
express terms of this Agreement without prior written authorization from
Licensor. Any use or reproduction not authorized by this Agreement is
prohibited and terminates this Agreement.
(c)
Licensee acknowledges that the Licensed Product and the licensed
materials therein are highly proprietary in nature and that unauthorized
copying, transfer or use may cause Licensor irreparable injury that cannot be
adequately compensated for by means of monetary damages. Licensee agrees that
any breach of this Agreement by Licensee may be enforced by Licensor by means
of equitable relief (including, but not limited to, injunctive relief) without
the necessity of posting any bonds in addition to any other available rights
and remedies.
8.
Term & Termination.
(a)
Term. This Agreement shall commence on the earlier of the dates
that you purchase or receive the Software and remain in effect until
terminated. The operational term of a Managed Temporary license extends from
its start date for the contracted number of days, after which it will no longer
operate.
(b)
Early Termination. If Licensee: (i) makes or distributes, or
fails to prevent others under Licensee’s reasonable control from making or
distributing, copies of the Licensed Product (except as expressly permitted by
this Agreement) or modifications or derivations thereof; or (ii) breaches
any provision of this Agreement, then this Agreement shall terminate
automatically.
(c)
Effect of Termination. Upon any termination of this Agreement,
Licensee shall: (i) immediately discontinue use of the Licensed Product; (ii)
remove the Licensed Product from Licensee’s hardware; (iii) delete and destroy
all copies of the Licensed Product in its possession or control; and (iv) no
later than ten (10) days after Licensor’s request, deliver a certificate to
Licensor signed by Licensee (if an individual) or by a properly authorized
officer of Licensee certifying that the foregoing have been performed.
Sections 2, 4, 5, 6, 7, 8(c), 10, 11, 12 and 13 shall survive the termination
or expiration of this Agreement for any reason in accordance with their
respective terms.
9. Disclaimer
of Warranties. LICENSOR LICENSES AND PROVIDES THE LICENSED PRODUCT TO
LICENSEE ON AN “AS-IS” BASIS. LICENSOR HEREBY DISCLAIMS ANY AND ALL WARRANTIES
AND CONDITIONS WITH REGARD TO THE LICENSED PRODUCT, INCLUDING, BUT NOT LIMITED
TO, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT.
10.
Limited Remedy. Licensee’s sole and exclusive
remedy for any damage or loss in any way connected with the licensing or use of
the Licensed Product, whether or not by Licensor’s breach of warranty,
negligence or any breach of any other duty, will be replacement of defective
media.
11. Limitations
of Liability.
(a)
General. IN NO EVENT WILL LICENSOR BE LIABLE FOR DAMAGES ARISING
OUT OF THE USE OR LICENSING OF THE LICENSED PRODUCT OR ARISING UNDER THIS
AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, TO LICENSEE OR ANY OTHER
PERSON OR ENTITY.
(b)
Consequential Damages, Etc. LICENSOR SHALL NOT BE LIABLE TO
LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, OR CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF DATA, IMPAIRMENT OR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL
OTHER COMMERCIAL DAMAGES OR LOSSES, DIRECT OR INDIRECT, WHETHER IN TORT,
CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c)
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL REMAIN
FULLY OPERATIVE EVEN IF THE LIMITED REMEDY SET FORTH IN SECTION 10 FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE HELD TO BE UNENFORCEABLE.
12.
Export Regulations. The transfer of technology
across national boundaries is regulated by the U.S. Government. Licensee
agrees that Licensee shall not: (a) acquire, ship, transport, export or
re-export the Licensed Product, directly or indirectly, into any country in
violation of any applicable law (including, but not limited to, the United
States Export Administration Act and the regulations promulgated thereunder);
or (b) use the Licensed Product for any purpose prohibited by such laws.
13. Miscellaneous.
(a)
The Software and Documentation are, respectively “commercial computer
software” and “commercial computer software documentation” as such terms are
defined and used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. Consistent with
48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through §277.7204-4, as
applicable, if Licensee is a U.S. Government entity, Licensee’s rights with
respect to the Licensed Product are limited to those set forth in this
Agreement.
(b)
Interpretation. The validity, interpretation, rights and
obligations of the parties and any dispute arising under this Agreement shall
be governed by the laws of the Commonwealth of Pennsylvania applicable to
contracts between residents of Pennsylvania and wholly performed in Pennsylvania. Neither the United Nations Convention on the International Sale of Goods,
the 1974 Convention on the Limitation Period in the International Sale of
Goods, nor any amendment or protocol to either of the foregoing shall apply to
this Agreement or the activities undertaken under or in respect of this
Agreement.
(c)
Severability. If any provision of this Agreement shall be
determined to be void, invalid, unenforceable or illegal for any reason, then
the validity and enforceability of all the remaining provisions hereof shall
not be affected thereby.
(d)
Failure to Exercise Rights. The failure of either party to
exercise any of its rights under this Agreement for a breach thereof shall not
be deemed to be a waiver of any subsequent breach of the same or any other
provision.
(e)
Titles. The titles of the Sections of this Agreement are for
convenience only and do not in any way limit or amplify the terms and
conditions of this Agreement.
(f)
Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter of this
Agreement and supersedes any and all prior and contemporaneous understandings,
statements, warranties, representations and agreements, both oral and written,
with respect to the subject matter of this Agreement. This Agreement cannot be
modified except in a writing signed by the party against whom enforcement is
sought.