End User License Agreement
(Single User Only, Non-Networked Applications)
IMPORTANT READ CAREFULLY : This End User License Agreement ("Agreement") is a legal and binding agreement between you (either an individual or a single entity) (hereinafter "You" or "Your") and PIXELA Corporation ("PIXELA") regarding the software product. You are about to use, download and/or install and the associated proprietary media, printed materials, any associated documentation (including any electronic documentation), and also regarding any updates or modifications of the foregoing provided by PIXELA or its licensees or agents to You (collectively referred to as the "Product").
WHEN YOU INSTALL OR OTHERWISE USE ANY PART OF THE PRODUCT, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, THEN (1) YOU WILL NOT HAVE THE RIGHT TO USE THE PRODUCT AND (2) YOU MUST RETURN THE UNUSED PRODUCT (INCLUDING ALL RELATED MANUALS AND DOCUMENTATION) AND THE PROOF OF PAYMENT TO THE PLACE YOU OBTAINED THEM FOR A FULL REFUND WITHIN 30 DAYS OF ACQUIRING THE PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF PIXELA SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY PIXELA, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. License
Subject to Your compliance with the terms and conditions of this Agreement, PIXELA hereby grants to You a limited, personal, non-sublicensable, non-transferable, non-exclusive license to: (i) use one copy of the Product only for Your personal, noncommercial use on a single computer system and only in accordance with the accompanying end user documentation; and
(ii) make one copy of the Product in machine readable form solely for archival back-up purposes, provided You reproduce PIXELA's copyright proprietary legends in any such copy.
2. General Restrictions
You shall not (nor shall You permit anyone else to) directly or indirectly: (i) copy (except as expressly set forth above), modify, or distribute the Product or any portion thereof; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Product or any portion thereof (except where the foregoing is permitted by applicable local law, and then only to the extent so permitted); (iii) rent, lease, or use the Product or any portion thereof for timesharing or service bureau purposes, or otherwise use or allow the use of the Product or any portion thereof for any commercial purpose or on behalf of any third party; (iv) remove or obscure any proprietary notices on the Product; (v) post or otherwise make available the Product, or any portion thereof, in any form, on the Internet or the World Wide Web; (vi) distribute copies of the Product to others (electronically or otherwise); (vii) use a previous version of the Product after you receive a new version and are asked to discontinue using the previous version; (viii) use the Product on a network which is shared by others; (ix) distribute the Product or any component of the Product; or (x) export or reexport the Product in violation of any laws or regulations. As a specific condition of this license, You agree to use the Product in compliance with all applicable laws, including without limitation copyright laws, and that You will not copy, transmit, perform or distribute any audio, video or other content using the Product without obtaining all necessary licenses or permissions from the owner of the content.
3. Special Third Party Limitations/Requirements/Restrictions/Disclaimers/Liability Limitations with respect to the use of the Product
The Product contains certain third party materials and technology and the use of the Product is therefore subject to the following additional limitations, requirements, restrictions, disclaimers and liability limitations:(i) MPEG-2. Any use of the Product (including any updates) other than consumer personal use in any manner that complies with the MPEG-2 Standard for encoding video information for packaged media is expressly prohibited without a license under applicable patents in the MPEG-2 Patent Portfolio, which license is available from MPEG LA, 250 Steele Street, Suite 300, Denver, Colorado, 80206.
4. Proprietary Rights
PIXELA and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Product all copies or portions thereof, and any derivative works thereof (by whomever created). The Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Notwithstanding anything else, the Product is licensed and not sold. All rights in the Product not specifically granted in this Agreement are reserved by PIXELA and its licensors.
5. Confidentiality
You agree to maintain the Product and any data or databases contained therein in confidence and that You will not disclose the Product to any third party without the express written consent of PIXELA. You may not use the Product except as set forth herein. You further agree to take all reasonable precautions to preclude access of unauthorized persons to the Product.
6. Term and Termination
This license is effective until terminated hereunder. You may terminate the license at any time by destroying the Product (including the related documentation) together with all copies or modifications in any form. PIXELA will have the right to terminate the license granted herein immediately if You fail to comply with any term or condition of this Agreement. The license granted to You herein will terminate automatically upon any breach of Sections 1, 2 or 3. Upon termination of this Agreement for any reason, You shall immediately stop using the Product and shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Product. Sections 2 through 14 shall survive any termination of this Agreement.
7. Limited Warranty
For a period of ninety (90) days from the date You purchase the Product (the "Warranty Period"), PIXELA and its Licensors warrant only that the Product will perform substantially in accordance with the specifications stated for the Product in the accompanying written end-user documentation. THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCT THAT HAS BEEN ABUSED, MISUSED, DAMAGED IN TRANSPORT, ALTERED, NEGLECTED, OR SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, AS REASONABLY DETERMINED BY PIXELA.
NOTWITHSTANDING ANYTHING ELSE HEREIN, THE ENTIRE LIABILITY OF PIXELA AND ITS LICENSORS, AND YOUR EXCLUSIVE REMEDY FOR A BREACH OF THE FORGOING WARRANTY, SHALL BE, AT PIXELA'S OPTION AND EXPENSE: (A) REPAIR OR REPLACEMENT OF THE PRODUCT FOR PRODUCT THAT MEETS THE WARRANTY OR (B) A REFUND OF THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCT, IN BOTH CASES WHERE THE PRODUCT IS RETURNED TO PIXELA, WITHIN THE WARRANTY PERIOD, AND ACCORDING TO THE "WARRANTY CLAIM PROCEDURE" OUTLINED BELOW.
8. Warranty Disclaimer
THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY PIXELA. EXCEPT FOR THE FOREGOING, THE PRODUCT IS PROVIDED "AS IS" AND NEITHER PIXELA NOR ANY OF ITS LICENSORS PROVIDE A WARRANTY OF ANY KIND WITH REGARD TO THE PRODUCT. PIXELA AND ITS LICENSORS EXPRESSLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
FURTHER, NEITHER PIXELA NOR ITS LICENSORS WARRANT THE RESULTS OF USE OF THE PRODUCT OR THAT THE PRODUCT IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED. PIXELA AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE RESULTS YOU MAY OBTAIN BY USING THE PRODUCT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
9. Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE HEREIN, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY, SHALL PIXELA OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE PRODUCT, OR (II) FOR ANY MATTER BEYOND PIXELA OR ITS LICENSOR'S REASONABLE CONTROL. PIXELA'S AND ITS LICENSOR'S MAXIMUM LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCT, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE PIXELA'S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF PIXELA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. Export
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and You shall not export, or allow the export or re-export of the Product in violation of any such restrictions, laws or regulations. By using the Product, You agree to the foregoing and represents and warrants that You are not located in, under the control of, or a national or resident of any restricted country.
11. Indemnity
You agree that PIXELA shall have no liability whatsoever for any use You make of the Product. You shall indemnify and hold harmless PIXELA from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Your use of the Product as well as from Your failure to comply with any term of this Agreement.
12. Government Restricted Rights
If You are an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product, or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. This Product is commercial computer software and the related documentation is commercial computer software documentation. The use of the Product and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto.
PIXELA CORPORATION
Head Office
25F, Namba Parks Tower 2-10-70 Namba-naka,
Naniwa-ku Osaka 556-0011 Japan
13. General
This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable. The failure of PIXELA to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit PIXELA's rights with respect to such breach or any subsequent breaches. This Agreement is personal to You and may not be assigned or transferred for any reason whatsoever without PIXELA's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. PIXELA expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law (without regard to its conflicts of laws provisions) as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in San Francisco, California. You hereby agree to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASIS OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
Questions concerning this Agreement should be sent to the address set forth below. Any notices or correspondences will only be effective if sent to such address.
PIXELA CORPORATION
Head Office
25F, Namba Parks Tower 2-10-70 Namba-naka,
Naniwa-ku Osaka 556-0011 Japan
