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CHROMAFLO END USER LICENSE AGREEMENT
IMPORTANT – READ CAREFULLY BEFORE INSTALLING OR OTHERWISE USING THE SOFTWARE PROVIDED UNDER THIS AGREEMENT: This End User License Agreement (“EULA“) is a binding legal agreement for the Chromaflo Software Product in which this EULA is contained, which includes computer software and the Chromaflo Database and may include color formula data and characterization data and/or other data (the “Data“) and online or electronic documentation (collectively the “Software Product“), between you (“you”) and Chromaflo Technologies Finland Group Oy, a private company with limited liability incorporated under the laws of Finland (“Chromaflo“). BY INSTALLING OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. YOU MUST INDICATE YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS EULA BY PRESSING THE “I ACCEPT” BUTTON ON THE SOFTWARE PRODUCT’S INSTALLATION PROGRAM, OR ELSE YOU WILL NOT BE ABLE TO INSTALL THE SOFTWARE PRODUCT. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, WE ARE UNWILLING TO LICENSE THE SOFTWARE PRODUCT TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE PRODUCT NOW. If you are installing the Software Product on a computer that is not owned by you, you are bound to the terms of this EULA both in your individual capacity and as an agent of the owner of the computer, and your actions will bind the owner of the computer. You represent and warrant to Chromaflo that you have the capacity and authority to enter into this EULA on your own behalf as well as on behalf of the owner of the computer the Software Product is being installed upon. For purposes of this EULA, the owner of a computer is the individual or entity that has legal title to the computer or that has the possessory interest in the computer if it is leased or loaned by the actual title owner.
INTELLECTUAL PROPERTY RIGHTS. The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You acknowledge that all intellectual property rights in the Software Product throughout the world belong to Chromaflo or its suppliers, that rights in the Software Product are licensed (not sold) to you, and that you have no rights in, or to, the Software Product other than the right to use it in accordance with the terms of this EULA. You acknowledge that you have no right to have access to the Software Product in source code form. The Software Product may include Open Source Software originally developed by third parties and licensed subject to Open Source Software licenses which are listed at www.innovatint.com/thirdparty. Your right to use such Open Source Software shall be governed by the applicable Open Source Software license terms.
GRANT AND SCOPE OF LICENSE. The Software Product is licensed, not sold. Subject to and conditioned on your ongoing compliance with the terms and conditions of this EULA, Chromaflo hereby grants to you a personal, non-exclusive, non-transferable, non-sublicensable standalone license to use the Software Product on the terms of this EULA. You may install and use the Software Product for your internal business purposes only. The usage of the Software Product shall be limited to the license scope restrictions described in this EULA and additional license scope restrictions, if any, described any additional provided software agreements. Chromaflo reserves all other rights. Unless mandatory law gives you more rights despite this limitation, you may use the Software Product only as expressly permitted in this EULA. In doing so, you must comply with any technical limitations in the Software Product that only allow you to use it in certain ways. You may not work around any technical limitations in the Software Product.
If you are installing this copy of the Software Product as an upgrade, update, patch or enhancement of a previous release of the same Software Product which was installed on the same computer, your rights under the previous license agreement for the Software Product are terminated, and all of your use of the Software Product (including its previous versions) are solely under the terms of this EULA.
YOUR UNDERTAKINGS. Except as expressly set out in this EULA or as permitted by any applicable mandatory law, you undertake:
(a) not to copy the Software Product;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software Product without prior written consent from Chromaflo;
(c) not to make alterations to, or modifications of, the whole or any part of the Software Product nor permit the Software Product or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to create derivative works based on the Software Product;
(e) not to disassemble, de-compile or reverse engineer the whole or any part of the Software Product nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software Product with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software Product with another software program; (ii) is not disclosed or communicated without Chromaflo’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and (iii) is not used to create any software which is substantially similar to the Software Product;
(f) to keep your copy of the Software Product secure;
(g) to supervise and control use of the Software Product and ensure that the Software Product is used by your employee or representative in accordance with the terms of this EULA;
(h) to maintain the copyright notice of Chromaflo on your copy of the Software Product;
(i) not to provide, or otherwise make available, the Software Product in any form, in whole or in part, to any person without the prior written consent from Chromaflo.
You agree to defend, indemnify and hold harmless Chromaflo from all damages and third party claims arising from unauthorized use or transfer of the Software Product. You must permit Chromaflo and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software Product is being kept or used, for the purpose of ensuring that you are complying with the terms of this EULA.
TERMINATION. Without prejudice to any other rights, Chromaflo may terminate this EULA or your rights under this EULA at any time if you fail to comply with any of the terms and conditions of this EULA. Upon termination of your rights under this EULA for any reason, or upon termination of the EULA itself, you must immediately delete or remove the Software Product from the computer equipment in your possession, custody or control (including all component parts, printed materials, any previous versions, and this EULA) and certify to Chromaflo that you have done so. The terms of this paragraph shall survive any termination of this EULA.
TRANSFER. You may not transfer, assign, charge or otherwise dispose of this EULA, or any of your rights or obligations arising under it to a third party without the prior written consent of Chromaflo. In the case Chromaflo by written agreement grants permission to transfer your rights under this EULA, you are not allowed to retain any copies of the Software Product; you are to transfer your copy of the Software Product (including all component parts, printed materials, any prior versions, and this EULA), and the recipient must agree to be subject to the terms of this EULA. Upon the occurrence of such a transfer, your rights under this EULA terminate immediately. Chromaflo may transfer, assign, charge, sub-contract or otherwise dispose of this EULA, or any rights or obligations arising under it, at any time during the term of this EULA.
LIMITED WARRANTY. The warranties and disclaimers described in this paragraph are collectively the “Limited Warranty“. Chromaflo warrants to you (and only you) that the Software Product will, when properly used, perform substantially in accordance with the functions described in the accompanying documentation (if any) for a period of ninety (90) days from the date of original purchase of a license to the Software Product (the “Purchase Date“). You acknowledge that the Software Product has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software Product as described in the accompanying documentation (if any) meet your requirements. You acknowledge that the Software Product may not be free of bugs or errors and that the use of the Software Product may not be uninterrupted. You agree that the existence of any minor errors shall not constitute a breach of this EULA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CHROMAFLO AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS WITH REGARD TO OR ARISING OUT OF THE SOFTWARE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, INTEROPERABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND/OR ACCURACY OF INFORMATION. THE LIMITED WARRANTY PROVIDED HEREIN IS PERSONAL TO, AND INTENDED SOLEY FOR THE BENEFIT OF, YOU AND DOES NOT EXTEND TO ANY THIRD PARTY. The Limited Warranty is void and not applicable if failure of the Software Product has resulted from:
(a) accident, abuse, misapplication, handling, storage, use or maintenance of the Software Product other than as described in the documentation issued by Chromaflo;
(b) modification or repair to the Software Product otherwise than as authorized in writing by Chromaflo;
(c) use of the Software Product in combination with other computer programs that are not compatible with the Software Product;
(d) your installation of the Software Product;
(e) a defect in your own products or software;
(f) installation or wiring of the Software Product other than in accordance with the documentation issued by Chromaflo or Chromaflo’ instructions;
(g) transfer of the Software Product from the computer equipment on which it was originally installed;
(h) your breach of the terms of this EULA; and/or
(i) any fault of you or your representatives.
Goods, software and labour used, as well as any and all expenses and costs reasonably incurred, by Chromaflo for the repair or replacement or correction of the Software Product found in whole or in part to be non-conforming for reasons listed above under (a) up to and including (i) shall be for your account. The Limited Warranty does not apply to any third party products or software or the Data. No individual (except a duly authorised officer of Chromaflo) and no reseller has any authority to amend or add to any of the above representations and disclaimers. All Data are provided “AS IS”. For any Data, your sole and exclusive remedy will be the re-issuance of the Data.
YOUR REMEDY. Your exclusive remedy for any breach of the Limited Warranty is for you to give us notice of the breach by returning to Chromaflo a description of the alleged breach, and then, at Chromaflo’s discretion, Chromaflo shall either: (a) return the price you paid (if any) for the Software Product (at which time your rights under this EULA are deemed to have terminated); or (b) repair or replace the Software Product, provided that you make available all information that may be necessary to assist Chromaflo in resolving the defect or fault, including but not limited to (i) adequate records that accurately document operating time and maintenance performed on the Software Product and (ii) sufficient information to enable Chromaflo to recreate the defect or fault. The Limited Warranty period for any replacement Software Product will be extended for the remainder of the original warranty period or thirty (30) days after the replacement Software Product is delivered to you, whichever is longer. Your remedies described in this paragraph are your exclusive remedies, and shall not be deemed to fail in their essential purpose so long as Chromaflo is willing to repair or replace the Software Product or return the price you paid for the Software Product.
LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, in no event shall Chromaflo or its suppliers be liable for any special, incidental, punitive, exemplary, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise (including, without limitation, damages for loss of income, loss of business profits or contracts, loss of production, business interruption, loss of the use of money or anticipated savings, loss of business information, loss of opportunity, loss of revenues, interest, capital, financing, goodwill or reputation, opportunity or productivity, loss of, damage to or corruption of data or any other pecuniary loss) arising out of the use of or inability to use the Software Product, even if Chromaflo has been advised of the possibility of such loss or damage. In any case, Chromaflo’s maximum aggregate liability under or in connection with any provision of this EULA, whether in contract, tort (including negligence) or otherwise, shall be limited to the amount actually paid by you for the Software Product. Any action against Chromaflo must be brought within twelve (12) months after the event giving rise to the cause of action.
This EULA sets out the full extent of Chromaflo’s obligations and liabilities in respect of the supply of the Software Product. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Chromaflo except as specifically stated in this EULA. You acknowledge that Chromaflo’s pricing reflects ownership of intellectual property rights and the limitation of liability hereunder. Any condition, warranty, representation or other term concerning the supply of the Software Product which might otherwise be implied into, or incorporated in, this EULA, whether by statute or otherwise, is hereby excluded to the fullest extent permitted by law.
THIRD PARTY WORKS. To the extent Chromaflo’s Software Product licensed under this EULA contains any third party’s intellectual property, this third party shall retain exclusive right to its components. You agree that such third party is a third-party beneficiary of the terms of this EULA to the extent of the third party’s license to Chromaflo. Use of such third party components may be subject to restrictions contained in the third party’s end-user license agreement in addition to the conditions set forth in this EULA. Chromaflo shall make available to you upon request the third party’s end-user license agreement applicable. Copyright and other proprietary rights notices of Chromaflo and third parties are contained in the Software Product and you shall not modify, delete or obfuscate such notices.
AUDIT. Upon fifteen (15) business day notice to you, Chromaflo, or its designated third party auditor, shall have the right to conduct an on-site audit during your normal business hours to verify your compliance with the terms and conditions of this EULA. You agree to cooperate with Chromaflo by making applicable records available and directing all employees to cooperate with Chromaflo. If the audit reveals that you owe additional license fees, you shall pay the amounts owed and Chromaflo’s reasonable expenses in conducting the audit.
REMOTE SUPPORT. If needed during the use of the Software Product, you may request the assistance of a Chromaflo technical support representative, who may either be a Chromaflo service technician, or a third party instructed by Chromaflo, through a remote connection to your computer. You are aware of that such assistance may involve costs which will be invoiced to you. By requesting assistance, you will be providing Chromaflo technical support personnel with access to and control of your computer. In order to enable remote access to your computer, you agree that Chromaflo will install the necessary client software for remote support. Chromaflo has the right to make available and sublicense this third party client software.
You may be providing Chromaflo technical support personnel with access to files that may reside on your computer. Be sure to close any confidential or personal files that you may be working on, before allowing remote access to your computer. In order to provide the services, Chromaflo technical support personnel is not expected to need to make any copies or downloads of your files or to retain any information accessed from your computer. Chromaflo recommend you remain at your desktop and observe the entirety of the remote session and strictly follow all safety measures provided in the equipment’s technical manual when working via remote support. The rotating parts can be dangerous when the equipment is left unattended, and any damage incurred by you or third parties during the remote access shall be for your risk and account.
Chromaflo’s maximum aggregate liability and the liability of its service providers shall be limited to the value of the Chromaflo remote technical support services to be provided to you when you request assistance. Chromaflo and its service providers make no warranties of any kind with regard to the technical support services provided hereunder. Chromaflo and its service providers hereby disclaim all warranties and conditions with regard to the technical support services. In no event will Chromaflo or its service providers be liable for any direct, indirect, punitive, incidental, special, consequential damages or any other damages whatsoever including, without limitation, damages for loss of use, data or profits arising out of or any way connected with the use or performance of Chromaflo remote assistance. By requesting Chromaflo to remotely access my computer to perform technical support, you accept the terms of the above disclaimer and other limitations of liability includes in this EULA.
DATA AND INFORMATION COLLECTION. You are aware that Chromaflo is collecting certain data and information regarding the environment where and how the Software Product is used, like computer operating system, screen’s resolution, usability data regarding the use of the Software Product, etc. This data and information is used by Chromaflo in further development works of Software Product. The data and information is collected during installation or updating the Software Product. No personal data or information is collected.
GENERAL. This EULA constitutes the entire agreement between you and Chromaflo concerning the Software Product. No terms of any purchase order, acceptance, purported amendment, or any document or communication other than an agreement expressly agreed upon in writing by a duly authorised officer of Chromaflo shall replace, modify, amend or override this EULA. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. No waiver by Chromaflo of any breach of any term or provision of this EULA shall be construed to be a waiver of any preceding or succeeding breach of the same or any other term or provision hereof. Our various rights and remedies hereunder shall be construed to be cumulative and no one of them is exclusive of any other or of any right or remedy allowed by law. This EULA shall be governed by and construed in accordance with the laws of Finland, except to the extent the local law of your local jurisdiction requires use of your local jurisdiction’s law, and shall benefit Chromaflo, its successors and assigns. Any claim or dispute between you and Chromaflo or against any agent, employee, successor or assignee of Chromaflo, whether related to this EULA or otherwise, and any claim or dispute related to this EULA or the relationship or duties contemplated under this EULA, shall be resolved by the competent court of Helsinki, Finland.