This license agreement (“License”) is a legal agreement between you and Datacolor, Inc. (“Datacolor”) granting you certain rights to access and use the Datacolor Software owned by Datacolor and contained in this envelope (the “Software”). YOU HEREBY AGREE, BOTH ON YOUR OWN BEHALF AND AS AN AUTHORIZED REPRESENTATIVE OF ANY ORGANIZATION FOR WHICH YOU ARE USING THE SOFTWARE (“EMPLOYER”), THAT YOU AND YOUR EMPLOYER WILL USE THE SOFTWARE ONLY IN ACCORDANCE WITH THE FOLLOWING TERMS:
1. LIMITED WARRANTY on Media (if applicable).
Datacolor warrants the media on which the Software is recorded to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase.
Your exclusive remedy under this paragraph shall be, at Datacolor’s option, a refund of the purchase price of the product containing the Software or replacement of the Software which is returned to Datacolor or a Datacolor authorized representative with a copy of the receipt. Datacolor, 5 Princess Road, Lawrenceville, NJ 08648, Attn: Customer Service, or call 1-800-554-8688 for a Datacolor authorized representative.
THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE.
Some states do not allow limitations on how long an implied warranty lasts, so this limitation may not apply to you. The Limited Warranty set forth herein is exclusive and in lieu of all others, whether oral or written, express or implied.
DATACOLOR SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO MEDIA. This Limited Warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
2. Disclaimer of Warranty on Software.
You expressly acknowledge and agree that use of the Software is at your sole risk.
THE SOFTWARE IS PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.
Datacolor does not warrant that the functions contained in the Software will meet your requirements, or that the operation of the Software will be uninterrupted or error-free, or that defects in the Software will be corrected. Furthermore, Datacolor does not warrant or make any representation regarding the use or the results of the use of the Software or related documentation in terms of their correctness, accuracy, reliability or otherwise. Should the Software prove defective, you (and not Datacolor or a Datacolor authorized representative) assume the entire cost of all necessary servicing, repair or correction. Some states do not allow the exclusion or limitation of implied warranties, so the above exclusion may not apply to you. The terms of this disclaimer do not affect or prejudice the statutory rights of a consumer acquiring Datacolor products otherwise than in the course of a business; neither do they limit or exclude any liability for death or personal injury caused by Datacolor’s negligence.
If you have purchased the Software for business or commercial use, you also agree that DATACOLOR EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.
3. Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL DATACOLOR BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE OR THE SOFTWARE.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above limitation may not apply to you. In no event shall Datacolor’s total liability to you for all damages exceed the amount of fifty dollars ($50.00). The foregoing limitation will apply even if the above stated remedy fails of its essential purpose.
4. License Grant.
With respect to any monitor calibration software, Datacolor grants to you, and you accept, a personal, nonexclusive, nontransferable license to install and use the Software in object code format on one or more computers at a single physical location, and on five additional laptop, notebook or other portable computers.
With respect to any other Datacolor software, Datacolor grants to you, and you accept, a personal, nonexclusive, nontransferable license to install and use the Software in object code format on a single computer at a time. If you wish to use the Software on a network, please contact Datacolor.
In addition to installed copies, you may make one copy of the Software in machine-readable form only for backup purposes. The backup copy must include all copyright information contained on the original.
Datacolor grants to you, and you accept, a personal, nonexclusive, nontransferable license to distribute profiles in .ICM or .ICC format (“Profiles”), including to customers of your consulting or design services, so long as you do not otherwise sell, lease, or rent Profiles, nor bundle Profiles with any hardware, software or other commercial product.
This License is effective until terminated as provided herein. You may terminate this License by destroying the Software and all copies of the Software in your possession. This License will terminate automatically upon any violation of the terms of this License. You acknowledge that this License does not entitle you to any support, maintenance or upgrade from Datacolor.
5. License Restrictions.
You may not do any of the following yourself, or through any other person and you may not permit any third party with whom you have a business relationship to do any of the following: (A) copy, modify or create derivative works based upon the Software; (B) decompile, disassemble, or reverse engineer the Software in whole or in part; (C) defeat, disable or circumvent any protection mechanism related to the Software; (D) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Software or any product (as a separate product or bundled with any other products other than the Software) created with the Software (except Profiles, which may be distributed only as set forth in Section 4 above), or, in particular, without limiting the generality of the foregoing, distribute the Software or any such product on any media, over networks, electronic bulletin boards, or websites, or allow any third party to use the Software; (E) export, use or download the Software in violation of any laws or regulations, including U.S. Department of Commerce Export Administration regulations and other applicable laws or (F) use the Software in connection with life support systems, human implantation, medical devices, nuclear facilities, nuclear systems or weapons, aviation, mass transit or any applications where failure or malfunction could lead to possible loss of life or catastrophic property damage.
6. Title and Ownership.
Except for the rights expressly granted above, this License transfers to you no right, title, or interest in the Software, any product (including, without limitation, Profiles) created with the Software or any copyright, patent, trademark, trade secret or other intellectual property or proprietary right in the Software or any such product. Datacolor retains sole and exclusive title to all portions of the Software and any copies thereof, and you hereby assign to Datacolor all right, title, and interest in and to any modifications you make to the Software and any product you make with the Software, whether or not such modifications are permitted. You agree not to disclose the Software to anyone.
7. Export Law Assurances.
You may not use or otherwise export or reexport the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained.
8. Government End Users.
If the Software is supplied to the United States Government, the Software is classified as “restricted computer software” as defined in clause 52.227-19 of the FAR. The United States Government’s rights to the Software are as provided in clause 52.227-19 of the FAR.
9. Controlling Law and Severability.
This License shall be governed by the laws of the United States and the State of New Jersey. You irrevocably submit to the jurisdiction of any state or federal court sitting in Mercer County, New Jersey, and any action or proceeding arising out of this License will be heard and determined in such court. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
10. Complete Agreement.
This License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Datacolor.