End user agreement for DxO FilmPack
IMPORTANT – READ CAREFULLY
This DxO Labs End-User License Agreement (DELA) is a legal agreement between you (either an individual or a single entity) and DxO Labs for the DxO Labs Software identified in the Invoice. If you do not agree to be bound by the terms of this DELA, do not install the Software. Your acceptance of the Software and present Agreement will be deemed to occur at the date of your first use of the Software. Therefore, by the first use of the Software, you agree that DxO Labs or the owner of any Third Party Software included in the Software will be entitled to enforce the terms of the Agreement against you.
“Agreement" means this agreement and the related Invoice.
“Damages means any losses, damages, costs (including reasonable attorney’s fees) or liabilities.
“Delivery Date means the date of the Software’s download or the date set out in the Invoice.
“Designated Environment means the computer equipment and software operating system set out in the Invoice, as may be amended from time to time.
“Documentation means the document supplied to you if you purchase a Software License, which contains a description of the Software and its functionalities. This documentation may be printed, “on line or electronic.
“DxO Group or “DxO means DxO Labs S.A and its direct or indirect subsidiaries.
“DxO Software means the Software owned by any member of the DxO Group.
“Error means a material and reproducible critical failure of the Software to function substantially in conformity with the Documentation.
“Invoice means the Invoice associated with this Agreement.
“License means the license granted by us to you to use the Software and the Documentation in accordance with the terms and conditions of this Agreement.
“Licensed Copies means the number of copies of the Software and the Documentation licensed, as set forth in the Invoice.
“Photographic Equipments: means the camera body and the lens corresponding to the Modules of the Software ordered by you.
“Price means the price for the Software License as set out in the Invoice.
“Service Hours means the hours, set out on our Web Site, during which we may provide Software Support to you as described on our Web Site.
“Site means the site, set out in the Invoice, where the Software will be delivered and operated.
“Software means the computer programs set out in the Invoice in modular form in machine-readable, object code form, including any copies made pursuant to Section 2.1(b).
“Software Support means diagnosis and repair services to be provided by us in response to an Error during the Service Hours.
“Third Party Software means any computer program which is owned by a third party other than a member of the DxO Group and which is made available to you by us as part of the Software. Except as specifically excluded in this Agreement, the Third Party Software will be considered part of the Software.
“Warranty Period to the extent allowed by applicable law, warranty on the Software is limited to 90 days from the Delivery Date.
“Web Site means the DxO products Web Site: http://www.DxO.com/.
2 SOFTWARE LICENSE
2.1 Subject to DxO receiving the full payment of any amount set out in the Invoice, we grant you a single user, non-exclusive and non-transferable license to:
(a) use the copy of the Software and the Documentation in the version set out in the Invoice and in the Designated Environment for your sole own personal needs;
(b) make a full and complete copy of the Software and Documentation for archival or re-build purposes only (limited to a maximum of one copy per License), provided that this copy of the Software will be subject to the terms of this Agreement;
(c) make a secondary copy of the Software for your portable computer provided that (i) its usage is not concurrent with the use of the Software on the Designated Environment and (ii) this copy of the Software will be subject to the terms of this Agreement.
Notwithstanding the above, you are authorised, in the event of the assignment of the Photographic Equipments to a third party, to transfer the license to the third party to whom the Photographic Equipments are assigned, should you comply with the DxO policies described on our Web Site.
2.2 Except for the limited rights mentioned in section 2.1, you are not granted any right on the Software and, in particular, you agree you will not:
(a) make available or distribute all or part of the Software or Documentation to any third party whether by assignment, sub-license or by any other means;
(b) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Software or Documentation, except as allowed by law or this Agreement;
(c) use the Software to operate in a time-sharing, outsourcing, batch processing, rental or service bureau environment, or in any way allow third parties to use, or access the Software;
(d) conceal or remove any title, trademark, copyright, proprietary or restricted rights notices contained in the Software, the Documentation or the copies of the Software.
2.3 You may have chosen to receive a copy of the Software on one medium after having downloaded it. Regardless of the number of medium you received, you may not concurrently run the Software on a larger number of computers than stated in Section 2.1 (c).
2.4 This Software is licensed as a single product regardless the number of Modules composing it. You agree not to separate these Modules for any purpose whatsoever.
2.5 DxO reserves explicitly the right to correct any errors or bugs within the Software.
3 SOFTWARE SUPPORT AND UPGRADE
DxO may provide you Software Support during the Service Hours subject to the terms and conditions of the DxO policies described in the Web Site. Any supplemental software code provided to you as part of the Software Support shall be considered as part of the Software and subject to the terms and conditions of this agreement.
In order to improve customer service, DxO software may transmit to your account on the DxO website information about your DxO software and computing environment. The information transmitted may include: product activation code, DxO product version, installed DxO Modules, Operating System type and version number. This information is stored for support purposes only.
If DxO makes a Software release available you must be properly licensed to use the Software version identified by DxO as being eligible for the upgrade in order to use the Software release. A Software labelled as an upgrade replaces and/or supplement the Software that formed the basis for your eligibility for the upgrade.
Neither Software Support nor upgrade offered by DxO are available without proof of purchase of the Software License.
4 PRICE AND PAYMENT
4.1 You will pay the Price in accordance with the amount set out in the Invoice, including - should you choose this option - any costs reasonably incurred by us in the delivery of the Software as they are incurred which will include costs of billing, shipping and insurance.
4.2 You will pay any sums due by you to us under this License in full, without any right to set-off or deduction, within the time delay stated in the Invoice. If any tax in the nature of withholding tax is payable on any sums invoiced under this Agreement, you will pay us such amount as is necessary to ensure that the net amount received by us after such withholding shall be equal to the amount invoiced.
4.3 You will be responsible for all applicable sales, use, value added or similar taxes or taxes payable with respect to the provision of the Software, or arising out of or in connection with this Agreement, other than taxes based upon our income. If we pay any such taxes on your behalf you agree to reimburse us for such payment.
4.4 If you fail to pay any amounts invoiced under this Agreement in full within the time period specified in the Invoice, you will be liable to pay us interest at the French legal interest rate on the amount due, such interest to accrue on a daily basis from the due date until actual payment and your right to the Software License will be stopped until the actual payment.
5 PROPRIETARY RIGHTS, TITLE AND RISK OF LOSS
You acknowledge and agree that the copyright, patent, trademark, images, photographs, text and all other intellectual property rights of whatever nature in the Software and the Documentation are and will remain the property of the DxO Group or the owners of the Third Party Software, and nothing in this Agreement should be construed as transferring any aspects of such rights to you or any third party.
6.1 We warrant to you that: (i) we have the right to perform our obligations under this Agreement and in particular to grant the License and (ii) the Software will perform substantially in accordance with the Documentation during the Warranty Period. We do not warrant that the Software will meet your own needs. Therefore, it is your responsibility to evaluate your needs and appreciate if the Software is adapted to your needs.
6.2 Upon you giving us notice during the Warranty Period of any Error, we will, during the Service Hours and at no cost to you take all reasonable steps to correct such Errors, excluding any Errors caused by:
(a) use of the Software which is not in accordance with the Documentation; or
(b) your negligence, or any accident, misuse, unauthorized modification, failure of electrical power supply, or improper environment.
6.3 Although we are not obliged to remedy any Error that occurs during the Warranty Period that is caused by any of the events set out in Section 6.2. (a) and (b), we will use our reasonable commercial efforts to do so and any such efforts will be considered as an Additional Service and will be charged to you according to the DxO policies described in the Web Site.
6.4 During the Warranty Period, if we are unable to correct an Error (i) which totally prevents the use of the Software, (ii) of which we have been given notice and (iii) which we are obliged to remedy pursuant to Section 6.2, our liability for such Error or repeat of such Error will be limited to a refund of that portion of the pre-paid Price applicable to the relevant part of the Software which contains the Error, upon which refund you will return to us the relevant part of the Software which contains the Error.
6.5 THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY US. WE EXPRESSLY EXCLUDE ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS IN THE SOFTWARE CAN BE CORRECTED.
7 YOUR RESPONSIBILITIES
7.1 During the Warranty Period, you will cooperate with us and provide any necessary assistance to allow us to perform our obligations under this Agreement.
7.2 You will:
(a) promptly notify us of any Errors;
(b) provide sufficient information to us to facilitate the effective diagnosis of any Error;
(c) permit us to take such steps as we reasonably consider necessary to remedy any Error.
8 GENERAL INDEMNITY
8.1 Subject to Sections 10.2, 10.3 and 10.4 we agree to indemnify you against any Damages you may suffer due to:
(a) any misrepresentation or breach of representation or warranty by us contained in this Agreement; or
(b) any breach of our obligations under this Agreement.
8.2 Subject to Sections 10.3 and 10.4 you agree to indemnify us against any Damages we may suffer due to:
(a) any misrepresentation or breach of representation or warranty by you contained in this Agreement;
(b) any breach of your obligations under this Agreement; or
(c) any claim brought by any third party against us based on your use of the Software, unless such claim is caused by our gross negligence or wilful misconduct.
9 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
9.1 Notwithstanding Section 9.2, we agree to indemnify you against any Damages you may suffer due to any claim by any third party that the use or possession by you of the DxO Software (and Third Party Software to the extent the Third Party Software owner has agreed to indemnify us) infringes a copyright, patent, trade secret, trademark or other intellectual property right of that third party provided that:
(a) we are given prompt notice of the claim;
(b) we or, if applicable, any Third Party Software owner are given complete control over such claim, and you fully co-operate with us or such Third Party Software owner at either our or such Third Party Software owner’s expense in the conduct of such claim;
(c) you do not prejudice in any manner our or such Third Party Software owner’s conduct of such claim; and
(d) the claim is not based upon the use of the Software in a manner:
(i) not authorized under this Agreement;
(ii) for which the Software was not designed; or
(iii) not in accordance with the Documentation;
(e) we will not be obliged to indemnify you for any claim of infringement based on the:
(i) use of a superseded version of the Software, if infringement would have been avoided by the use of the current version of the Software which we have made available to you;
(ii) use of an altered version of the Software; and
9.2 If a final injunction is obtained against the use of any part of the Software as a result of a claim under which we are obliged to indemnify you under Section 9.1, and provided you have fully complied with Sections 9.1 (a) through (e), we will, at our option and expense either:
(a) procure for you the right to continue to use the Software;
(b) modify the Software so that it becomes non-infringing;
(c) replace such Software with software offering similar functions, provided such replacement substantially complies with the Documentation; or
(d) if it is commercially impossible to achieve (a), (b) or (c) above, terminate the license and pay you a cancellation fee equal to the Price paid for the infringing Software, less depreciation on a straight line basis at the rate of 50% per 12 month period, or pro rata for part of a 12 month period, from the Delivery Date to the date of the termination of the license. If we select this fourth option, the provisions of Section 9.4 regarding return of the Software (and any applicable Documentation) will apply.
9.3 If you do not wish to accept the solution we choose to adopt as set out in Section 9.2, then we will have no liability to indemnify you pursuant to Section 9.1.
9.4 You agree to indemnify us for any loss or damage we may suffer due to any claim by a third party for alleged infringement of any copyright, patent, trade secret, trademark, or other intellectual property right arising out of your use of the Software in any manner prohibited by this Agreement.
10 LIMITATION OF LIABILITY
10.1 WE ACCEPT LIABILITY ONLY FOR:
(a) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE;
(b) ANY OTHER DIRECT LOSS OR DAMAGE CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10.2 UNDER NO CIRCUMSTANCES WILL OUR LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE PRICE ACTUALLY PAID BY YOU FOR THE SOFTWARE UP UNTIL THE DATE OF THE BREACH GIVING RISE TO THE CLAIM.
10.3 NEITHER OF US WILL HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE TO DATA, LOSS OF BUSINESS OR LOST PROFITS.
10.4 Neither of us will be under any liability for any loss or for any failure to perform any obligation contained in this Agreement due to causes beyond its control. Should such causes continue for more than six months, either of us may cancel the Agreement immediately upon giving notice to the other party.
11 TERM AND TERMINATION
11.1 The License will remain in effect for the duration of the copyright unless terminated in accordance with Sections 9.2(d) or 11.2.
11.2 The party not in default may automatically terminate this Agreement (within the timescales set out below) if the other party:
(a) commits a material breach of this Agreement which is incapable of remedy - immediately upon giving notice;
(b) commits any other material breach of this Agreement which is capable of remedy - 30 days after giving notice of the breach, if the breach remains unremedied;
(c) subject to applicable law, makes an assignment for the benefit of its creditors, or an order is made or effective resolution is passed for its winding up, or it has a receiver, manager or administrator appointed in respect of any of its property - immediately upon giving notice.
11.3 Upon termination of this Agreement, you will immediately cease using the Software and Documentation and promptly return or destroy at our direction all copies of the Software and Documentation. You will delete all copies of Software residing in memory on any computer at the Site. You will, within 10 days from the effective date of the termination, certify in writing that all copies of the Software and Documentation have been returned, deleted or destroyed as directed by us. If you fail to do so, we will be entitled to enter the Site during normal business hours to repossess and remove the Software and Documentation.
12.1 Certain parts of the Software might be subject to European Union, United States and other country’s export regulations for high technology goods. You warrant that you are not subject to any restriction on delivery of the Software to you and you agree to comply with such regulations.
12.2 This Agreement sets out the entire understanding between us relating to your purchase of the License and use of the Software and replaces all prior proposals, understandings and other agreements, oral and written between us relating to the subject matter of this Agreement.
12.3 If any part of this Agreement that is not fundamental is found to be illegal or unenforceable, this will not affect the validity or enforceability of the remainder of this Agreement.
12.4 If either of us delays or fails to exercise any right or remedy under this Agreement, that party will not have waived that right or remedy.
12.5 This Agreement will be governed by and construed in accordance with the laws of France. Any dispute arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the Paris Commercial Court.
12.6 Sections 4, 5, 6, 7, 9, 10, 11.3 and 12.5 will survive the termination of this Agreement for any reason.
12.7 In this Agreement:
(a) any reference to a notice means to a written notice;
(b) headings are for convenience only and do not affect the interpretation of the Agreement; and
(c) words importing the singular include the plural and vice versa.