End User License Agreement
This End User License Agreement, including the Checkout Page which by this reference is incorporated herein (this "Agreement"), is a binding agreement between Schneider Visuals LLC dba LutCo ("Licensor") and the person or entity identified on the Checkout Page as the licensee of the LUT ("Licensee").
LICENSOR PROVIDES THE LUT SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY PURCHASING THE LUT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE LUT TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE LUT OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY LUT THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S LUT.
Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Authorized Users" means solely the purchaser of the LUT as set forth on the Checkout Page who has accepted these Terms.
"Checkout Page" means the web page where you purchase a LUT online.
"Documentation" means user manuals, technical manuals, and any other materials provided by Licensor, if any, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the LUT.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"License Fees" means the license fees, including all taxes thereon, paid by Licensee for the license granted under this Agreement.
"LUT" means the software embodying the LUT for which Licensee is purchasing a license, as expressly set forth in the Checkout Page.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
"Third Party" means any Person other than Licensee or Licensor.
License Grant and Scope. Subject to and conditioned upon Licensee's payment of the License Fees and Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, transferable, limited license during the Term to use, solely by and through its Authorized Users, the LUT and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:
Download and install in accordance with the Documentation one (1) copy of the LUT on up to three (3) devices, each of which must be owned or leased, and controlled by, Licensee. In addition to the foregoing, Licensee has the right to make one copy of the LUT solely for archival purposes and one copy of the LUT solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy(ies). All copies of the LUT made by the Licensee:
will be the exclusive property of the Licensor;
will be subject to the terms and conditions of this Agreement; and
must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
Use and run the LUT as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee's personal and internal business purposes. Subject to subsection (d) below, such use is permitted only on the computer on which the LUT is installed, at the physical location thereof and not via any remote access or other network.
Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the LUT in accordance herewith. All copies of the Documentation made by Licensee:
will be the exclusive property of Licensor;
will be subject to the terms and conditions of this Agreement; and
must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
Transfer any copy of the LUT from one device to another (including from Licensee’s device to the devices of another person working on a project for or with Licensee), provided that:
the number of computers on which the LUT is installed at any one time does not exceed the number permitted under Section 2(a); and
Licensee notifies Licensor in writing of each such transfer.
Third-Party Materials. The LUT may include LUT, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Licenses"). A list of all materials, if any, included in the LUT and provided under Third-Party Licenses, if any, can be found on Licensor’s website and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
use (including make any copies of) the LUT or Documentation beyond the scope of the license granted under Section 2;
provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the LUT or Documentation;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the LUT or Documentation or any part thereof;
combine the LUT or any part thereof with, or incorporate the LUT or any part thereof in, any other programs;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the LUT or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the LUT or Documentation, including any copy thereof;
except as expressly set forth in Section 2(a) and Section 2(c), copy the LUT or Documentation, in whole or in part;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the LUT, or any features or functionality of the LUT, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, LUT as a service, cloud, or other technology or service;
use the LUT or Documentation in violation of any law, regulation, or rule; or
use the LUT or Documentation for purposes of competitive analysis of the LUT, the development of a competing LUT product or service, or any other purpose that is to the Licensor's commercial disadvantage.
Responsibility for Use of LUT. Licensee is responsible and liable for all uses of the LUT and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the LUT and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the LUT and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
Maintenance and Support. Unless Licensee has purchased a maintenance and support package, Licensor shall be under no obligation to provide Licensee with any maintenance and support services in connection with the LUT. From time to time, Licensor may in its sole discretion, make available to Licensee updates, upgrades, bug fixes, patches, and other error corrections (collectively, "Updates"), however Licensor is under no obligation to do so. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates, if any, will be deemed LUT (as the term is defined and used herein), and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee's receipt thereof will require an internet connection, which connection is Licensee's sole responsibility. Licensor has no obligation to provide Updates via any other media.
Intellectual Property Rights. Licensee acknowledges and agrees that the LUT and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the LUT or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the LUT and all Intellectual Property Rights arising out of or relating to the LUT, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all LUT (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor's Intellectual Property Rights in the LUT and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
PAYMENT. All License Fees and Support Fees are payable in advance in the manner set forth in the Checkout Page and are non-refundable.
Term and Termination.
This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the "Term").
Licensee may terminate this Agreement by ceasing to use and destroying all copies of the LUT and Documentation.
Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for 7 calendar days after Licensor provides written notice thereof.
Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the LUT and Documentation. No expiration or termination shall affect Licensee's obligation to pay all Licensee Fees [and Support Fees] that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 12.1(c)(ii).
Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
Solely with respect to LUTs for which Licensor receives a License Fee, Licensor warrants that, for a period of 90 days following the purchase date set forth on the Checkout Page:
the LUT will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.
THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
The warranties set forth in Section 12(a)(i) and Section 12(a)(ii) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any Authorized User, or any other Person provided access to the LUT by Licensee or any Authorized User, whether or not in violation of this Agreement:
installs or uses the LUT on or in connection with any hardware or LUT not specified in the Documentation;
modifies or damages the LUT, or the media on which it is provided, including abnormal physical or electrical stress; or
misuses the LUT, including any use of the LUT other than as specified in the Documentation.
If, during the period specified in Section 12(a), any LUT covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 12(b), Licensor will, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either:
repair or replace the LUT, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or
refund the License Fees paid for such LUT, subject to Licensee's ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the LUT.
If Licensor repairs or replaces the LUT, the warranty will continue to run from the initial date specified on the Checkout Page, and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 12(c) are Licensee's sole remedies and Licensor's sole liability under this Agreement.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE LUT AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LUT AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED LUT WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER LUT, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE LUT; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT.
THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Export Regulation. The LUT and Documentation may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the LUT or Documentation to, or make the LUT or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the LUT or Documentation available outside the US.
US Government Rights. The LUT is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the LUT and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Miscellaneous.
All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor's reasonable control.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Checkout Page (or to such other address as may be designated by a party from time to time in accordance with this Section 16(c)).
This Agreement, together with the Checkout Page, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
For purposes of this Agreement, (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Checkout Page referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.