“Licensed Product(s)” means the Master Colors HVC Color Composer software, Master Colors HVC Color Corrector software and the Master Colors HVC Color Quantification Suite software as developed by Master Colors, LLC, a USA limited liability company (herein referred to as “Master Colors”), in machine-readable form of the object code, user documentation, user manuals, installation guides, training materials, Updates, Upgrades, New Releases, Product(s) and maintenance, ordered by You and provided by Master Colors while this Agreement is in effect.
“Update(s)” and/or “Upgrade(s)” means a subsequent release of a particular Licensed Product, which provides patches, fixes, modifications, error corrections or enhanced functionality and for which Master Colors does not charge a license or other additional fee to You for that Licensed Product.
“New Release(s)” means a Licensed Product with greater or different capability than the Licensed Product(s) and for which Master Colors charges a separate and/or additional license fee.
License Grant. The Licensed Product(s) are licensed only and are not sold to You. Master Colors hereby grants, and You accept, a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license to use the Licensed Product(s) in machine readable form only for Your individual use only in the manner in which such License Product(s) were intended. You may make one (1) copy of the Licensed Product(s) solely for backup purposes. You may use the Licensed Product(s) within or in conjunction with any other software, subject to the terms and conditions contained herein, and any use shall always remain subject to this Agreement.
License Restriction. You shall display and retain Master Colors’ and/or its suppliers' copyright, trademark, proprietary, confidentiality statement and other notices on any portion of the Licensed Product(s) however such Licensed Product(s) are used.
Master Colors Software Restrictions. You shall display and retain Master Colors’ and/or its suppliers' copyright, trademark, proprietary, confidentiality statement and other notices on any portion of the Licensed Products however such Licensed Products are used. You shall (i) not attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Licensed Product or any portion thereof, or otherwise derive its source code; (ii) not modify, port, translate, localize or create derivative works of the Licensed Product; (iii) not disclose the results of any performance tests or qualitative analysis on the Licensed Products(s) to any third party without the prior written consent of Master Colors; (iv) not use the Licensed Product(s) on a server, (“server” shall mean a system that is used to access or is accessed by and/or store data for multiple personal computers); (v) not use the Licensed Product(s) in a way that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (d) is obscene, pornographic or indecent in violation of applicable law; or (e) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (vi) not use the License Product(s) in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems and (vii) not use a total number of licenses in excess of the total amount allocated to You. The license granted hereunder is specific to You only, and is not transferable to any other person or business entity, including subsidiaries and successors-in-interest to You, without the prior written consent of Master Colors.
Termination for Breach. Master Colors may, by written notice to You which shall include electronic mail (email), terminate this Agreement, including all licenses granted hereunder, if any of the following events occurs: (a) the failure of You to pay Master Colors in full any fee or charge due to Master Colors if payment is not rendered within ten (10) days after the payment was due; (b) any breach of any material term or obligation of this Agreement if not remedied within thirty (30) days after written receipt of notice; (c) any material breach of license grants, license restrictions, intellectual property rights, or confidentiality provision provided herein effective immediately upon receipt of notice from Master Colors; or (d) the insolvency of You.
European Union Data Protection Act. In accordance with Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC - O.J. L 181/19 of 4.7.2001, the Annex titled “Standard Contractual Clauses” is hereby incorporated by reference in its entirety. You may find a complete version of the text at www.master-colors.com/legal/ .
Export Controls. You understand that the Licensed Product(s) are subject to regulation by agencies of the United States Government as well as the laws and regulations of other applicable countries which prohibit the export, import or diversion of certain technological products or services to certain countries and individuals. You hereby specifically agree to comply in all respects with such export, re-export, and/or import restrictions. You further agree not to export/import or attempt to export/import the Licensed Product(s) without the prior written consent of Master Colors. You may not export/import or re-export/import the Licensed Software (or provide to a national of) countries in the US Government Country Group E:1 or E:2 without a license or license exception from the U.S. Department of Commerce nor otherwise violate any provisions of U.S. export laws.
Intellectual Property Rights. All intellectual property rights in and to the Licensed Product(s) shall remain the property of Master Colors (and/or its suppliers if applicable) exclusively. You shall have no right in or to the Licensed Product(s) except as expressly set forth in this Agreement. Intellectual property includes, but is not limited to, patents, inventions, invention disclosures, Marks (as defined below), trade secrets, know-how, formulae and processes, software programs, proprietary data and databases, copyrights and all other similar items of intellectual property, whether registered or unregistered, including any rights created thereof, all proceeds thereto, and the right to sue for past, present and future infringements. All rights not expressly granted hereunder by Master Colors are reserved for Master Colors (and/or its suppliers if applicable). Master Colors retains the rights in and title to its respective trade names, trademarks, service marks, logos, domain names and other branding elements and identifiers (the “Marks”), and any other intellectual property previously or generally developed by Master Colors or its affiliates. You shall not copy, use, display, distribute or transfer the Marks or other Intellectual Property of Master Colors, except as expressly provided by this Agreement.
Intellectual Property Indemnification. Master Colors will defend, at its own expense, any action against You based upon a claim that a Licensed Product(s) infringes a United States patent or United States copyright or involves misappropriation of a trade secret. Master Colors will pay such damages or costs as are finally awarded against You for such infringement or misappropriation provided that You give Master Colors: (a) prompt written notice of any such action and of all prior related claims; (b) sole control of the defense and settlement of such action; and (c) full cooperation in any defense or settlement. Master Colors shall not be liable for any fees, costs or damages incurred without such prior written notice, control and cooperation. Notwithstanding the foregoing, Master Colors shall have no liability for any claim of infringement of a patent, copyright or other intellectual property right or trade secret misappropriation, based upon the use of any Licensed Product (a) with any other product not supplied and or approved by Master Colors; (b) in any manner or purpose for which the Licensed Product was not designed (including changes to the Licensed Product); (c) if the infringement or misappropriation would have been avoided by Your use of the most current version of the Licensed Product(s); or (d) which have been modified by anyone other than Master Colors.
Exclusive Intellectual Property Infringement Remedy. Should any Licensed Product become, or in Master Colors' sole opinion be likely to become, the subject of a claim of infringement or trade secret misappropriation as set forth herein, Master Colors shall, at its option and expense: (a) obtain for You the right to continue using the Licensed Product; (b) replace or modify the Licensed Product so its use becomes non-infringing or otherwise lawful; or (c) terminate the license granted hereunder with respect to the infringing Licensed Product(s) and refund the license fee paid by You for the infringing Licensed Product(s), less a reasonable allowance for past use. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
Licensed Product(s) Limited Warranty. Master Colors warrants that the Licensed Product(s) will substantially conform to its documentation for ninety (90) days from delivery. If Master Colors confirms a defect reported by You in the unaltered Licensed Product(s), Master Colors will use commercially reasonable efforts to remedy the nonconformance. Master Colors does not warrant that the operation or utilization of any Licensed Product(s) will be uninterrupted or error free, nor does it guarantee that its remedial efforts will correct any nonconformance. Corrections will be warranted for the remainder of the original warranty period. If any Licensed Product(s) fails to comply with any warranty set forth in this Section and Master Colors does not remedy such failure as required by this Section, Master Colors’ obligation and liability, and Your exclusive remedy, for such failure shall be limited to the refund of the license or maintenance fees paid within the last twelve (12) month period prior to such failure, whichever is less, excluding reasonable amounts for past use, for such Licensed Product(s), upon the return of such Licensed Product(s) to Master Colors, in which event this Agreement shall terminate with respect to such Licensed Product(s). You expressly recognize and acknowledge that such limitation of liability is an essential part of this agreement and is an essential factor in establishing the price of the License Product(s). THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.
DATA DISCLAIMER YOU EXPRESSLY RECOGNIZE THAT MASTER COLORS DOES NOT CREATE, OPERATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, THIRD-PARTY PRODUCTS, PROCESSED BY THE LICENSED PRODUCT(S) OR SERVICES PROVIDED VIA ANY LICENSED PRODUCT(S) HEREUNDER, INCLUDING BUT NOT LIMITED TO INFORMATION OBTAINED. MASTER COLORS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR ENDORSEMENT TO YOU OR ANY THIRD PARTY WHATSOEVER WITH REGARD TO ANY DATA, INFORMATION, PRODUCT(S) OR SERVICES PROVIDED IN CONJUNCTION WITH THE LICENSED PRODUCT(S), INCLUDING, WITHOUT LIMITATION, WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; AND 3) NON-INFRINGEMENT. MASTER COLORS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY USE OF THE LICENSED PRODUCTS.
GENERAL WARRANTY DISCLAIMER. MASTER COLORS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED HEREIN. ADDITIONALLY, MASTER COLORS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT WITH RESPECT TO ALL LICENSED PRODUCT(S), UPDATES, UPGRADES, NEW RELEASES AND ALL OTHER PRODUCT(S), SERVICES, MATERIALS AND OTHER ITEMS FURNISHED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT.
Limitation of Liability. Master Colors' (and its suppliers’) entire liability, and Your exclusive remedy, for any and all claims arising under or in connection with this Agreement or related to any item or service provided under or in connection with this Agreement, regardless of the form of the action (including negligence), whether in breach of warranty, contract, tort, strict liability or otherwise, shall be limited to one thousand ($ 1,000.00) US dollars. You expressly recognize and acknowledge that such limitation of liability is an essential part of this agreement and is an essential factor in establishing the price of the License Product(s).
EXCLUSION OF CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. IN NO EVENT SHALL MASTER COLORS (NOR ANY OF ITS SUPPLIERS) BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, OR LOST BUSINESS, IN CONNECTION WITH THE USE OF ANY LICENSED PRODUCT OR ANY OTHER ITEM OR SERVICE PROVIDED UNDER THIS AGREEMENT, NOR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, NOR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED UNDER THIS AGREEMENT, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE (INCLUDING NEGLIGENCE), EVEN IF MASTER COLORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Assignment. Neither this Agreement nor any of Your rights or obligations under this Agreement shall be assigned or transferred by You without the prior written consent of Master Colors and any attempted assignment or transfer without such consent shall be voidable by Master Colors upon notification. You agree that this Agreement binds You and each of Your employees, agents and persons associated with You, including Your affiliated and subsidiary firms, corporations and other organizations.
Force Majeure. Master Colors shall not be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by You by reason of such failure or delay, which is, indirectly or directly, caused by strike, riot, natural catastrophe, terrorist act, act of God, or any other cause beyond Master Colors’ reasonable control.
Limitations Period. Neither party may bring any action under this Agreement for any cause whatsoever more than two (2) years after the occurrence giving rise to such cause of action; provided however, that this Section shall not apply to any action brought by Master Colors to protect its intellectual property rights or confidential information.
No Waiver. If either party fails to perform any of its obligations hereunder and the other party fails to enforce the provisions relating thereto, such party's failure to enforce this Agreement shall not prevent its later enforcement.
Severability. If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the intent of the parties on the date hereof or (b) deemed eliminated where such modification is not practicable; the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion.
Notices. All notices and correspondence under this Agreement shall be in writing and shall be delivered by personal service, confirmed facsimile, express courier, or certified mail, return receipt requested, to the addresses first set forth herein, or at such different address as may be designated by such party by written notice to the other party from time to time. All notices shall be deemed received and effective upon receipt if delivered personally or sent by express courier or confirmed facsimile, and seven (7) days after mailing if sent by certified mail.
Governing Law and Venue for US Citizens/Entities. This Agreement shall be governed by the laws of the State of California, excluding its rules regarding conflict of laws. The parties mutually agree and submit to exclusive jurisdiction in the federal or district courts of Los Angeles or Santa Barbara Counties, California. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Both parties shall comply with all applicable administrative and export/import laws, including but not limited the Foreign Corrupt Practices Act, the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations, as the same may be amended from time to time.
Governing Law and Venue for Non-US Citizens/Entities. You agree to submit all disputes arising out of or relating to this Agreement to final binding arbitration in accordance with the then-existing Commercial Rules of the American Arbitration Association, before a single arbitrator selected from the American Arbitration Association. All arbitration proceedings shall be held within the State of California. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Both parties shall comply with all applicable administrative and export/import laws, including but not limited the Foreign Corrupt Practices Act, the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations, as the same may be amended from time to time
Irreparable Harm. You acknowledge that Your breach of this Agreement may cause irreparable harm to Master Colors and You agree that Master Colors shall be entitled to injunctive relief in the event of such a breach.
Modifications & Enforceability. No modification of this Agreement shall be binding upon either party unless made in writing and signed by an authorized representative of Master Colors and You. If any provision of this Agreement is held unenforceable for any reason whatsoever, the unenforceable provision will be construed in accordance with applicable law as nearly as possible to reflect the original intent, and all other provisions will remain in full force and effect.
Survival. The following Sections shall survive the expiration or termination of this Agreement: Section “Intellectual Property Rights”; Section “Intellectual Property Infringement”; Section “Limited Warranty & Disclaimer”; Section “General Limitation of Liability”; and Section “General.”
Limited Use. The Software is a “Commercial Item,” 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 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227.7202-4, 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. The Licensed Product(s) and the Documentation have been developed at private expense and are sold commercially to the general public. They are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation. Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in our standard commercial license. Thus, the Licensed Product(s) referenced herein, and the Documentation provided by Master Colors hereunder to any agency of the U. S. Government or U. S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations. Manufacturer is Master Colors Corporation located at 3905 State Street, Suite 7-144, Santa Barbara, California, 93105, United States.