Thinkbox End User License Agreement
CAUTION: CAREFULLY READ THE TERMS OF THIS AGREEMENT ("AGREEMENT") BEFORE OPENING THIS PACKAGE OR INSTALLING, COPYING OR OTHERWISE USING THE ACCOMPANYING SOFTWARE OR DOCUMENTATION. IF YOU OR YOUR AGENT OPENS THIS PACKAGE, CLICKS ON THE BUTTON BELOW INDICATING YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, OR INSTALLS, COPIES, OR OTHERWISE USES THE SOFTWARE, YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE NOT ACCEPTABLE TO YOU, (1) EITHER DO NOT OPEN THIS PACKAGE OR SELECT THE BUTTON BELOW INDICATING THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT; (2) YOU MAY NOT INSTALL, COPY, OR OTHERWISE USE THE SOFTWARE; AND (3) CONTACT THINKBOX SOFTWARE INC. ("THINKBOX") IMMEDIATELY AT THE NUMBER LISTED BELOW, firstname.lastname@example.org OR email@example.com.
PROVIDED THAT YOU OR YOUR AGENT HAS ACCEPTED AND AGREED TO THE TERMS OF THIS AGREEMENT, THINKBOX GRANTS YOU OR YOUR AGENT ("CUSTOMER") A LICENSE TO USE THE SOFTWARE AS INDICATED BELOW:
1.1 "Intellectual Property Rights" means patents, inventions, trademarks, service marks, registered designs, integrated circuit topographies, including applications for any of the foregoing, as well as copyrights, design rights, know-how, confidential information, trade secrets and any similar rights in the United States, Canada, and in any other country.
1.2 "Render Nodes" means a computer processor unit.
1.3 "Software" means Thinkbox's computer program identified on the ordering document in object code form, including the media on which it is stored; any related user documentation; and any updates or enhancements to the computer program or documentation, which Thinkbox is not obligated to provide and that Thinkbox may deliver pursuant to a separate support and maintenance agreement.
2.1 Subject to the terms and conditions of this Agreement, Thinkbox hereby grants to Customer a revocable, nonexclusive, worldwide right, solely for the internal business operation by Customer, to install or have installed, execute, and run the Software on the number of Customer's Render Nodes designated on the ordering document. Customer may make one (1) copy of the Software in machine readable form solely for back-up purposes, provided Customer copies all proprietary notices onto the copy.
2.2 Source code, as well as any other information pertaining to the logic, design, or structure of the Software, is specifically excluded from the License granted hereunder and shall remain a proprietary trade secret belonging exclusively to Thinkbox. Customer may only install or have installed, execute, or run the object code version of the Software.
2.3 To the extent enforceable under applicable law, Customer may not (a) distribute, disseminate, sublicense, copy, modify, reverse engineer, decompile, translate, disassemble, tamper with, or create a source code equivalent of the Software, in whole or in part; (b) create any derivative works from or of the Software, or otherwise incorporate any portion of the Software into Customer's own programs or compile any portion of it in combination with Customer's own programs; or (c) sell, rent, lease, lend, or loan the Software. Customer may not use the Software to provide time-sharing, service bureau, or other software services to third parties, or to develop interoperable plug-ins for distribution to or use by third parties, unless Customer has purchased from Thinkbox a specific license authorizing Customer to do so. Some software included in the Software may be provided to you under a separate license, including an open source license. In the event of a conflict between this Agreement and such separate license, the separate license will prevail with respect to the software included in the Software that is subject to such separate license.
2.4 Customer may not assign or transfer this Agreement or the license granted herein unless: (a) Customer has provided advance written notice to Thinkbox of the full name and address of the assignee or transferee, and has received the written consent of Thinkbox, which consent shall not be unreasonably withheld; (b) Customer has paid any license transfer fee then in effect; and (c) the transferee has agreed in writing to be bound by this Agreement.
2.5 Any rights not expressly granted herein are reserved. This Agreement is not a sale of the Software or any copy thereof and Customer has only acquired a license to use the Software on the terms set forth herein. Thinkbox retains all right, title, and ownership of the Software, all Intellectual Property Rights therein, and its trademarks. This Agreement does not grant Customer any rights in the trademarks of Thinkbox or its affiliates. Customer acknowledges that the Software contains trade secrets of Thinkbox and that the Software is protected by Canadian and international copyright and other intellectual property laws and treaties. Customer shall immediately notify Thinkbox in writing of any unauthorized possession or use of the Software.
3. Fees, Payments and Taxes.
All fees and expenses ("Fees") are as set out on Thinkbox's invoice, and are due and payable by Customer within thirty (30) days from the date of the invoice. Payment by Customer is to be made directly to Thinkbox at the address listed in the invoice. All payment of Fees shall be in U.S. Dollars. Any Fees or portion thereof which are not paid within thirty (30) days from the date of the invoice shall be charged daily interest at the rate of 24% per annum, or the highest rate permitted by law if lower, from the date of the invoice until paid in full. In the event Customer is in default of payment and had received any type of discount on Fees, any and all discounts shall be forfeited and the full amount of the Fees shall be due and payable. If Customer has any delinquent accounts with Thinkbox, Thinkbox shall not be obliged to continue performance of any agreement with Customer, unless Customer is contesting any such account in good faith and has paid the portion of the account it is not contesting. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other government fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All amounts payable by Customer under this Agreement are exclusive of all applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes ("Indirect Taxes"). Customer shall pay, and shall indemnify and hold Thinkbox harmless from, any sales, use, value-added, withholding, excise, import or export, or similar tax (excluding only taxes based on Thinkbox's net income) or other duty or fee and any penalties or interest associated with any taxes imposed by any governmental authority with respect to any payment to be made by Customer to Thinkbox under this Agreement. Customer will provide such information to Thinkbox as reasonably required to determine whether Thinkbox is obligated to collect Indirect Taxes from Customer. Thinkbox shall not collect, and Customer shall not pay, any such Indirect Tax or duty for which Customer furnishes Thinkbox a properly completed exemption certificate or a direct payment permit certificate or for which Thinkbox may claim an available exemption from Indirect Tax. All payments made by Customer to Thinkbox under this Agreement will be made free and clear of any withholding or deduction for taxes. If any such taxes (for example, international withholding taxes) are required to be withheld on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Thinkbox is equal to the amount then due and payable under this Agreement. Thinkbox will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement. If Customer is licensing the Software from a Thinkbox reseller (a "Reseller"), all references to Thinkbox in this Section 3 will also include a reference to the applicable Reseller.
Upon receipt of Customer's purchase order or other confirmation, Thinkbox or its Reseller will deliver a key to the ordered Software to Customer, and the Software shall be deemed accepted upon Customer's download. Customer bears all risk of loss in respect of the Software while it is in Customer's possession or control.
The term of the license to the Software granted pursuant to this Agreement is consistent with the terms of the purchase (e.g., usage based, annual, perpetual), provided that Customer has paid in full all associated Fees for the Software, and provided however that Thinkbox has the right to terminate such license and/or this Agreement immediately if Customer fails to comply with any of the terms of this Agreement or of any other agreement with Thinkbox in respect of the Software, including any agreement with respect to maintenance services, and such failure is not rectified within five (5) days written notice to Customer. Upon termination of this Agreement or the license granted herein, Customer shall destroy the Software and all copies thereof and provide certification in writing of the foregoing to Thinkbox. Such termination shall not prejudice or affect the accrued rights or claims of Thinkbox nor shall it release the Customer from the restrictions contained in Section 7 of this Agreement. Upon termination, Sections 8 and 9 will continue to apply in accordance with their terms.
Thinkbox or its Reseller will provide support and maintenance for the Software aligned with the license term for up to one (1) year from the date of delivery to Customer (the "Initial Support Period"). Unless Customer gives written notice to Thinkbox at least three (3) months prior to the end of the Initial Support Period or any Paid Support Period (as hereinafter defined), stating expressly its intention not to continue receiving support and maintenance, Thinkbox or its Reseller will continue, after the Initial Support Period and without further notice to Customer, to provide support and maintenance for the Software at a fee determined by Thinkbox from time to time, for successive periods (each such period being a "Paid Support Period"), subject only to the right of the Customer to terminate such support and maintenance with three (3) months prior notice, as set out in this Section 6.
7. Warranties/Exclusive Remedies.
7.1 Thinkbox warrants for ninety (90) days from the date of delivery to Customer (the "Warranty Period") that the enclosed media, if delivery is physical, is free of defects in materials and workmanship when properly adapted, installed, and used. If the enclosed media is defective and Customer gives written notice of such defect to Thinkbox within the Warranty Period, Thinkbox will promptly repair or replace any defective media which fails to comply with such warranty.
7.2 ALL WARRANTY CLAIMS NOT MADE IN WRITING OR NOT RECEIVED BY THINKBOX WITHIN THE WARRANTY PERIOD SHALL BE DEEMED WAIVED. THE FOREGOING STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND THINKBOX'S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY FOR ANY BREACH OF WARRANTY. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHERS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
7.3 EXCEPT AS SET FORTH ABOVE IN THIS SECTION 7, THE SOFTWARE IS PROVIDED TO CUSTOMER "AS IS," WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE MAY CONTAIN ERRORS, AND THAT NEITHER THINKBOX, ITS AFFILIATES, NOR ITS SUPPLIERS WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE SOFTWARE OR DOCUMENTATION.
8. Limitations of Liability.
THINKBOX, ITS AFFILIATES, AND ITS THIRD-PARTY SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, OR DATA, BUSINESS INTERRUPTION, DATA USAGE, COMPUTER FAILURE OR MALFUNCTION, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), BY STATUTE, OR OTHER LEGAL THEORY EVEN IF THINKBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF THINKBOX AND ANY AFFLIATES AND THIRD-PARTY SUPPLIERS FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSE(S). CUSTOMER IS RESPONSIBLE FOR PROVIDING APPROPRIATE SECURITY, PROTECTION, AND BACKUP OF CUSTOMER'S DATA. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK WHICH IS SET FORTH IN THIS SECTION 8. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, AND SO THE ABOVE LIMITATION MAY NOT APPLY IN RESPECT OF THOSE JURISDICTIONS ONLY.
9.1 Section headings are for convenience only have no interpretative value. Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral. Any conflicting terms of Customer's purchase order or order confirmation shall be superseded by this Agreement and shall be of no force or effect. THIS AGREEMENT MAY NOT BE MODIFIED BY CUSTOMER BUT MAY BE MODIFIED BY THINKBOX FROM TIME TO TIME, NOTICE OF WHICH WILL BE PROVIDED TO THE CUSTOMER AND CONTINUED USE OF THE SOFTWARE WILL BE CONSIDERED ACCEPTANCE OF SUCH MODIFIED AGREEMENT. Thinkbox's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Thinkbox's right to subsequently enforce such provisions or any other provisions of this Agreement. No waiver of any provision of this Agreement shall be effective unless in writing.
9.2 Customer represents and warrants that Customer and its financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury's Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce's Entity List), the European Union or its member states, or other applicable government authority. Moreover, Customer shall not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted the Software (including the related Documentation) and any related services provided by Thinkbox to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
9.3 This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Washington, without reference to conflict of law rules and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of King County, Washington and all courts competent to hear appeals therefrom. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
9.4 The parties shall not be liable for any failure to perform their respective obligations under this Agreement where such failure is due to causes beyond their reasonable control (except for any payment of money hereunder). This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement. All terms and conditions, which by their nature should survive the termination or expiration of this Agreement, shall survive.
9.5 Customer will comply with all applicable laws and regulations in its use of the Software and any other materials provided by Thinkbox under this Agreement. Without limiting the foregoing, Customer agrees to comply strictly with all applicable export or import laws and regulations, and will not transfer, or encourage, assist, or authorize the transfer of the Software to a prohibited country or otherwise in violation of any such restrictions or regulations.
9.6 Your purchase is governed by the Privacy Notice at http://www.thinkboxsoftware.com/privacy-policy. If you enter a support agreement with Thinkbox, the terms of that agreement will govern the treatment of information shared as part of that support relationship.