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License

IMATEST END USER LICENSE AGREEMENT

Updated March 30, 2015

 

This End User License Agreement (this “Agreement”) is made between Imatest LLC, a Colorado limited liability company (“Imatest”) and you or the Customer for whom you are purchasing any software or products (“User” or “You”). This Agreement is effective immediately upon your clicking “I agree” on this Agreement (the “Effective Date”). Upon your clicking “I agree”, You are agreeing to be bound by the terms and conditions set forth in this Agreement.

 

 

TERMS AND CONDITIONS 

  1. License.
    1. Licensed Software. The object code of (i) the Imatest software that you purchased or downloaded, and (ii), any updates, upgrades, revisions, modifications or derivative works of the software identified in (i) that are provided to You during the Term (if any), all of which are collectively referred to as “Licensed Software.”
    2. Paid License Grant and Reservation. Subject to the terms and conditions of this Agreement and your payment of any applicable license fees and compliance with the terms of this Agreement, Imatest grants to User a perpetual, non-exclusive, non-transferable, license to install, execute, and run the Licensed Software solely for User’s internal business use (including in support of User’s customers). For each copy of the Licensed Software licensed to Company hereunder, Company is authorized to install such Licensed Software on multiple computers that are owned and controlled by Company but may only run and execute one (1) instance of such Licensed Software on a single computer at any one time. As an exception, if the Licensed Software is explicitly named a parallel processing version, then Company may run and execute one (1) instance of such Licensed Software and up to twelve (12) processes within an instance on a single computer at any one time.
    3. Free Trial License. Subject to the terms and conditions of this Agreement, Imatest grants to User a limited, non-exclusive, non-transferable, license to install, execute, and run the Licensed Software solely for User’s trial and testing purposes. This license shall expire on the earlier of thirty (30) days from installation or following a fixed number of uses (the “Trial Period”). This license does not include any support or maintenance and is provided “AS IS” without warranty of any kind.
    4. Restrictions. Aside from the limited license to use the Licensed Software or Products granted in the preceding section, Imatest reserves all other rights in and to the Licensed Software and Products. Access to the Licensed Software shall be limited to User’s employees and independent contractors that are required to access the Licensed Software and Products to provide services to User, provided that an independent contractor must sign a legally binding written agreement with terms and conditions at least as protective of Imatest as this Agreement, including without limitation Sections 1 and 5 of this Agreement. User shall at all times remain responsible for the compliance of its employees and contractors with the terms of this Agreement. User agrees it shall not, except as expressly permitted in this Agreement, copy, reproduce, reverse-engineer, decompile or otherwise attempt to discover the means of operation of the Licensed Software or otherwise replicate, rent, time share, host, use virtualization to create multiple instances of an activated copy or otherwise provide remote access to the Software or Products in any manner or for any purpose.

 

  1. Fees and Payment.
    1. Initial Fees. User shall pay Imatest the fees in accordance with the list price immediately upon the Effective Date unless other payment terms are set forth in an invoice from Imatest.
    2. Invoicing and Payment. With respect to any orders for professional services executed hereafter, User will pay all invoiced amounts prior to the delivery of such additional services. All payments must be made in U.S. dollars. All fees paid are non-refundable.
    3. Taxes. All amounts payable under this Agreement are exclusive of taxes, duties or tariffs. User shall pay all taxes, duties and tariffs applicable to its purchase of the Licensed Software or Services applicable to its jurisdiction.

 

  1. Services. Imatest provides the following “Services”:
    1. Support Services. Your purchase of any Licensed Software includes one (1) year of support services (“Support Services”) beginning on the date of purchase. Imatest shall agree to provide such Support Services in accordance with its then current Support Services Guidelines (“Support Guidelines”), which are provided here imatest.com/supportguidelines.
    2. Additional Services. If User desires additional professional services (“Professional Services”), the parties may enter into a statement of work (SOW) setting forth the fees, the scope of Services and any requirements applicable to such Professional Services. Subject to User’s timely payment of fees, Imatest agrees to perform such Professional Services in accordance with such SOW. All Professional Services performed under an SOW will be governed by this Agreement.
    3. Third Party Contractors. Imatest may use one or more third party contractors to perform the Support Services, Professional Services and any other services performed hereunder.

 

  1. User Obligations. In order to enable Imatest to perform Services, User will perform its responsibilities under this Agreement and provide Imatest personnel with such other cooperation and assistance as Imatest reasonably requests. If User fails to perform its obligations or provide reasonable cooperation and assistance consistent with any requirements expressly set forth in the Support Guidelines or as set forth in an SOW, Imatest will be excused from performing the affected Services until User’s obligations are performed.

 

  1. Confidential Information. During the term of this Agreement, either party may have access to confidential material and information (“Proprietary Information”) belonging to the other party or the other party’s customers, vendors, or partners. “Proprietary Information” shall include without limitation, the disclosing party’s source code, business plans, customer/member lists and information, financial records, partnership arrangements and business plans. Proprietary Information does not include (i) information generally available to the public, (ii) information the receiving party had in its possession prior to receiving it from or developing it for the disclosing party, (iii) information received from a third party, or (iv) information independently developed by the receiving party without reference to information received pursuant to this Agreement from the disclosing party. Each party agrees that the disclosing party’s Proprietary Information will be kept strictly confidential by the receiving party and will not be disclosed to non-employees and agents, unless expressly authorized to do so by the disclosing party. The receiving party will protect the disclosing party’s Proprietary Information from unauthorized use, access, or disclosure in the same manner as the receiving party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Each party shall have the right, in addition to any other rights it may have, and the other party hereby consents, to entry in any court having jurisdiction of a temporary or permanent restraining order or injunction enjoining the receiving party from breach of this Section 6. Notwithstanding the foregoing, any information that you submit or share with Imatest in connection with this Agreement may be used to improve the function, marketing or utilization of the Licensed Software, Products or may be used to otherwise enhance our ability to deliver Services.

 

  1. Term and Termination. In the case of a paid license, the term of this Agreement commences on the Effective Date and shall continue until terminated by either party. In the case of a Free Trial License, this Agreement shall terminate immediately upon the conclusion of such Trial Period. Imatest may terminate this Agreement or a SOW at any time if Imatest notifies You in writing that You are in breach of a material provision of this Agreement, and such breach remains uncured after a period of thirty (30) days following such notice. If Imatest terminates this Agreement due to User’s material breach, then (i) User’s license to use the Licensed Software shall terminate and (ii) User shall uninstall the Licensed Software from its computer systems. Upon termination or expiration of the Agreement for any reason, all SOWs will immediately terminate, User will promptly pay Imatest all amounts owed to Imatest as of the effective date of termination or expiration, and each party will destroy or return all Proprietary Information (and copies thereof) of the other party in its possession. Sections 2, 5, 6, and 8-10, 13-17 will survive termination or expiration of the Agreement for any reason.

 

  1. Limited Warranty. Imatest represents and warrants for seven (7) days following the date you purchased the Licensed Software, that the Licensed Software, when installed properly on hardware supported by the Licensed Software, will function substantially in accordance with any documentation provided by Imatest. Imatest is not obligated to provide warranty protection or Support Services for any claims resulting from a failure to meet hardware, software or other requirements provided by Imatest, modification to the Licensed Software during the warranty period made by User or any other causes beyond Imatest’s control that may impact operation of the Licensed Software. User’s sole and exclusive remedy and Imatest’s sole liability for breach of the foregoing warranty is to utilize the Support Services that are included with this Agreement or to receive a link to a new download of the Licensed Software.

 

  1. Disclaimer. OTHER THAN AS PROVIDED IN SECTION 7, THE LICENSED SOFTWARE IS PROVIDED TO USER “AS IS.” IMATEST HEREBY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE PROFESSIONAL SERVICES, LICENSED SOFTWARE, AND CUSTOM SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. 

 

  1. Limitation of Liability. OTHER THAN FOR BREACH OF SECTION 1 OR 5, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN FOR BREACH OF SECTION 1 OR 5, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF FEES PAID BY CUSTOMER TO IMATEST IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM. NO ACTION ARISING UNDER OR IN ANY WAY RELATED TO THE SOFTWARE OR THIS EULA MAY BE BROUGHT BY USER MORE THAN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION HAS BECOME KNOWN TO THE PARTIES.

 

  1. Independent Contractor. With respect to the provision of any Services, Imatest is an independent contractor of User. Nothing in this Agreement should be construed as a joint venture or agency relationship between the parties. Notwithstanding the foregoing, either party may acknowledge or disclose the existence of a professional relationship between the parties.

 

  1. Entire Agreement. Except in the case of a previously executed Master Agreement that has been countersigned by both parties to this Agreement, this Agreement and any mutually executed SOW(s) constitute the complete agreement between the parties and supersede all prior agreements and representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized executive-level representative of each party; no other act, document, usage, purchase order or custom shall be deemed to amend or modify this Agreement. In the event of any conflict between this Agreement and an SOW, the SOW shall govern as to the scope of such SOW only. In all other cases, this Agreement shall control unless the SOW specifically references this Agreement and describes the provision of this Agreement that should be superseded or amended by the SOW.

 

  1. Marketing. Unless otherwise agreed in writing by the parties in a separate Non-Disclosure Agreement that expressly restricts marketing or disclosure of User as a customer of Imatest, Imatest may use User’s name and logo in marketing and other promotional materials (including the Imatest website) for the sole purpose of identifying them as a customer of Imatest beginning on the first date that User became a paid licensee of the Imatest Software.

 

  1. Waiver. The waiver of any term hereof will be binding only when committed to writing. No waiver, whether express or implied, will be construed as a waiver of the same or any other term, condition or right on any other occasion.

 

  1. Governing Law; Jurisdiction. As the exclusive means of resolving through adversarial dispute resolution any disputes arising out of this Agreement that involve sums greater than $10,000, a party may demand that any such dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and each party hereby consents to any such disputes being so resolved. Judgment on the award rendered in any such arbitration may be entered in any court having jurisdiction. In all other cases, the laws of the State of Colorado, excluding any law or legal principle that would require application of the law of a different state, govern this Agreement, and the parties agree to the exclusive jurisdiction of the state and federal courts located in or around Boulder, Colorado.

 

  1. Assignment. Other than an acquisition or sale of User by a third party that has affirmed its intent to meet the obligations hereunder, User may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Licensed Software) to any third party without Imatest’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.

 

  1. Notices. All notices, consents and approvals under this Agreement must be delivered in writing at the physical or electronic mail address entered by You (or associated with the licensed copy of this account if purchased from a third party other than Imatest) when purchasing or registering the Licensed Software or Products. All notices to be delivered to Imatest shall be sent by postal mail to 4775 Walnut Street, Suite 200, Boulder, CO 80301 or by electronic mail to support@imatest.com.

 

  1. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

 

SUPPORT GUIDELINES

 

These Support Guidelines govern the support services (“Support Services”) that Imatest LLC (“Imatest”) provides to “Customer(s)” that have purchased software under the Imatest End User License Agreement.  

  1. Support Term: Support Services are provided for one (1) year beginning on the date of your purchase (“Initial Term”). Any Services requested in addition to the Support Services or following the Initial Term shall be subject to a separate written agreement with Imatest.
  1. Supported Software: Imatest shall maintain and support the Licensed Software modules as licensed pursuant to the End User License Agreement and as updated from time to time via one or more Purchase Orders. Imatest agrees to support the Licensed Software within two (2) released Updates (“Supported Software”).
  1. Annual Support Fee Annual Support Fee shall be waived for the Initial Term. Any extensions of the Term or additional Services shall be subject to a separately agreed upon fee schedule.
  1. Activating Support: Customer must have information regarding the date of purchase, any license code(s), registration email address, and other relevant information needed to verify the purchase of Supported Software to activate Support Services. At that time, Customer will be asked to designate a primary point of contact for any support (“Support Representative”). Support Representative shall manage and communicate any support requests to Imatest and otherwise serve as a point of contact for Support Services.
  1. Updates and Upgrades

5.1    From time to time Imatest may, in its discretion, develop one or more Updates or Upgrades to the Licensed Software. Imatest will make such Updates and Upgrades available to Customer. “Update” means any dot version of the Supported Software (e.g. 3.x to 3.y), developed subsequent to the Effective Date, which implements improvements or bug fixes to features or functions and is not marketed by Imatest as a separate product and/or service. “Upgrade” means any newly named or version of the Licensed Software that includes substantially new features or functions and is generally denoted by a change in the leading number (e.g. 3.x to 4.y).

5.2    Any such Updates and Upgrades provided hereunder will be deemed to constitute part of the Licensed Software and will be subject to all the terms and provisions of the End User License Agreement. The provision of an Update or Upgrade does not include any additional installation or related services, which shall at all times be subject to a separate Services SOW.

  1. Exclusions

6.1 Other Professional Services.    Imatest will provide a separate SOW for any installation, customization, modification, development, training or other professional services. All fees will be at Imatest’s then prevailing rates, terms, and conditions for time, material, and service.

6.2 Other Exclusions.    Notwithstanding any other provision of this Agreement, Imatest shall have no obligation to maintain Supported Software Errors that are the result of or are caused by modification to the Supported Software not performed by Imatest, failure by Customer to meet the Imatest system requirements, failure of third party software or telecommunications services, or integration of the Supported Software with hardware, software and/or technology not supported by Imatest.

 

 

 For further information, please contact us at licensing@imatest.com