ENCHROMA, INC. CONTENT LICENSE AGREEMENT
Last updated: September 13, 2016
IMPORTANT – PLEASE CAREFULLY READ THE TERMS OF THIS CONTENT LICENSE AGREEMENT (“AGREEMENT”) FOR THE ACCOMPANYING CONTENT, WHICH INCLUDES VIDEOS, IMAGES, TEXT AND MAY INCLUDE ASSOCIATED MEDIA AND PRINTED MATERIALS (COLLECTIVELY, THE “ENCHROMA CONTENT”). THIS IS A LEGAL AGREEMENT THAT APPLIES TO ALL ENCHROMA CONTENT. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 10 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. BY CLICKING ON THE “I AGREE” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE ENTITY OR PERSON IN RESPECT OF WHOM THE LICENSE FOR THE ENCHROMA CONTENT WAS ORDERED AS SET FORTH ON THE ORDER FORM (THE “ORDER FORM” AND SUCH ENTITY OR PERSON, “LICENSEE”), AND TO BIND LICENSEE TO THE TERMS OF THIS AGREEMENT, AND (3) YOU AGREE THAT LICENSEE IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH ENCHROMA, INC. (“ENCHROMA”). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD CLICK ON THE “CANCEL” BUTTON TO DISCONTINUE THE DOWNLOAD OF THE ENCHROMA CONTENT.
1. Content License
- Content License. Subject to the terms and conditions of this Agreement, EnChroma grants to Licensee a nontransferable, non-sublicensable (except to the extent expressly permitted in this Section), nonexclusive, royalty-free, fully paid, revocable license, during the term of this Agreement, to permit its employees and contractors (“Authorized Users”) to (a) modify, incorporate, and make derivative works of the EnChroma Content using Licensee Content (as defined below) solely for Licensee’s own non-commercial purpose in connection with promoting, advertising, and communications related to EnChroma (the “Modified Content”, collectively with the EnChroma Content referred to as, the “Licensed Content”) and (b) reproduce, perform, display, and transmit the Licensed Content on the website(s) owned or operated by Licensee as designated on the Order Form and through the social media accounts owned or controlled by Licensee’s including, without limitation, [Facebook, Instagram, and twitter] (“Licensee Sites”). Except as expressly set forth herein, Licensee is not granted any right to, and shall not, permit any other use of the Licensed Content by its Authorized Users, or any use of the Licensed Content by any third party.
- LicenseRestrictions. The rights granted to Licensee in this Agreement are subject to the following restrictions: (a) Licensee shall not include Licensed Content on the Licensee Sites other than as expressly permitted herein and in accordance with all terms and conditions of Section 3; (b) Licensee shall not make the Licensed Content available, or otherwise use the Licensed Content, except as expressly licensed pursuant to Section 1.1 (any use by Licensee of the Licensed Content on any other website, mobile site or application or other media of Licensee other than the Licensee Sites as expressly provided herein requires a separate written agreement between EnChroma and Licensee, and EnChroma has no obligation to enter into any such agreement); (c) except as expressly set forth in this Agreement, Licensee shall not permit any use of the Licensed Content by any third party; (d) Licensee shall not permit the Licensed Content to be, or appear to be, reproduced, performed, displayed or distributed on, as part of or in connection with any website or other online (including mobile) area other than the Licensee Sites, whether by framing, in-line linking, appearing in a new window or otherwise; (e) If EnChroma instructs Licensee to delete or make inaccessible the Licensed Content because such Licensed Content may contain errors, is or could be subject to a third-party claim or for any other good faith reason, Licensee shall immediately comply with such instruction; (f) except to the extent expressly permitted in Section 1.1(a) above, Licensee shall not edit, alter, modify, combine with other content or create any derivative works of the EnChroma Content. Licensee shall preserve all copyright and other proprietary rights notices in the Licensed Content and all copies thereof. All uses of the Licensed Content that do not comply fully with the provisions of this Section shall for all purposes be deemed beyond the scope of the license granted hereunder. Any violation of this Section by Licensee or its Authorized Users shall be a material breach of this Agreement that is incapable of cure, and, in the event of any such violation, EnChroma may, in addition to and not in lieu of all other remedies, immediately terminate this Agreement as set forth in Section 6.
- Trademark License. Subject to the terms of this Agreement, EnChroma grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable royalty-free license during the term of this Agreement to use and reproduce the EnChroma Marks on the Licensee Sites, in compliance with EnChroma’s then-current trademark usage guidelines available online at Trademark Usage Guidelines and solely in connection with Licensee’s use of the Licensed Content to provide source attribution and in connection with Licensee’s obligations under this Agreement. If EnChroma notifies Licensee that any use does not so comply, Licensee shall immediately remedy to the satisfaction of EnChroma or terminate such use of the EnChroma Marks. Licensee acknowledges EnChroma’s exclusive ownership of the EnChroma Marks. Licensee agrees not to take any action inconsistent with such ownership and to cooperate, at EnChroma’s request and expense, in any action (including the conduct of legal proceedings), which EnChroma deems necessary or desirable to establish or preserve EnChroma’s exclusive rights in and to the EnChroma Marks. Licensee shall not adopt, use, or attempt to register any trademarks or trade names in any jurisdiction that are confusingly similar to the EnChroma Marks or in such a way as to create combination marks with the EnChroma Marks. All uses of the EnChroma Marks, and all goodwill associated therewith, shall inure solely to the benefit of EnChroma. “EnChroma Marks” means the EnChroma trademarks, used in connection with the Licensed Content, and such other trademarks as EnChroma may, from time to time, authorize Licensee in writing.
- 2. Delivery. Upon Licensee’s acceptance of this Agreement, EnChroma shall deliver to Licensee the EnChroma Content as follows: downloadable files linked from the webpage http://enchroma.com/media-kit/. Licensor is not liable for delays or failures of delivery beyond its reasonable control. Licensor’s sole responsibility for any such delay or failure is to deliver or re-deliver the relevant EnChroma Content as soon as reasonably possible.
- 3. Licensee Obligations
- Content Display. Throughout the term, Licensee shall have the right, but not the obligation, to provide the Licensed Content on the Licensee Sites solely to the extent of and within the scope of the license granted in this Agreement and otherwise in accordance with the following, Licensee shall: (a) present the Licensed Content solely in connection with marketing, advertising and communications about EnChroma products; (b) portray in a positive light: the EnChroma brand, EnChroma’s employees, officers and directors, and of individuals whose likeness appears in Licensed Content (c) not imply, directly or indirectly, including by displaying the Licensed Content together with content provided by Licensee or third parties, that EnChroma provides, endorses, sponsors, certifies or approves of other content included within the Licensee Sites or any products or services advertised in or near the EnChroma Content; (d) present the EnChroma Content and EnChroma Marks in such manner as to avoid any likelihood of confusion as to the source of the EnChroma Content and such other materials; (e) remove the EnChroma Content from the Licensee Sites immediately upon the expiration or earlier termination of this Agreement; and (f) comply with all applicable laws with respect to Licensee’s use of the Licensed Content and EnChroma Marks, including, without limitation, the Federal Trade Commission Act and the CAN-SPAM Act.
- Required Notices. Licensee shall preserve all copyright, trademark and other proprietary rights notices in the EnChroma Content and Modified Content and all copies thereof and shall include the symbol ™, SM, ®, or other symbol, as appropriate on all materials using the EnChroma Marks.
- Indemnification. Licensee will defend at its own expense any claim or action against EnChroma or its officers, directors, employees or contractors (each an “EnChroma Indemnified Party”) brought by a third party, and will indemnify and hold harmless each EnChroma Indemnified Party from and against all costs (including reasonable attorneys’ fees) and damages incurred by such EnChroma Indemnified Party in any such claim or action, to the extent that the action relates to or arises out of: (a) the Modified Content; (b) the Licensee Sites, including any material displayed or services provided thereon but excluding EnChroma Content and EnChroma Marks used in accordance with this Agreement; or (c) Licensee’s use of the Licensed Content and/or EnChroma Marks in a manner not permitted by this Agreement (including Licensee’s continued use of any Licensed Content in violation of Section 3.1(d) or any of the EnChroma Marks after Licensor has directed Licensee to cease using any such EnChroma Marks. The foregoing obligations are conditioned on EnChroma notifying Licensee promptly in writing of such action, giving Licensee sole control of the defense thereof and any related settlement negotiations, and at Licensee’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Licensee enter into any settlement that involves an admission of liability, negligence or other culpability of EnChroma or any EnChroma Indemnified Party or requires EnChroma or any EnChroma Indemnified Party to contribute to the settlement without EnChroma’s prior written consent.
- 4. Exclusions. Notwithstanding anything in this Agreement to the contrary, EnChroma will have no responsibility or liability of any kind under this Agreement, arising or resulting from: (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by EnChroma; (b) nonconformities resulting from Licensee’s, its Authorized Users’, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the EnChroma Content, EnChroma Marks, or other materials provided hereunder by EnChroma; (c) modification, amendment, revision, or change to the EnChroma Content or EnChroma Marks by any person other than EnChroma; (d) any other factor outside of EnChroma’s reasonable control or (e) Modified Content.
- 5. Ownership
- By EnChroma. Subject to Section 5.2 below, all right, title, and interest, including all intellectual property rights, in and to the Licensed Content (including any and all copies thereto) shall be owned and retained by EnChroma and its licensors. Any rights not expressly granted by EnChroma in this Agreement are reserved. Licensee acknowledges that it acquires no ownership interest in the EnChroma Content, EnChroma Marks, Modified Content or other materials provided by or on behalf of EnChroma hereunder. No implied licenses are granted by EnChroma. Subject to Licensee’s rights in Licensee Content, Licensee hereby irrevocably and unconditionally assigns to EnChroma all right, title, and interest worldwide in and to the Modified Content and all intellectual property rights thereto. Licensee understands and agrees that Licensee has no right to use the Modified Content except as expressly set forth in this Agreement. If any intellectual property rights, including moral rights, in the Modified Content, cannot (as a matter of law) be assigned by Licensee to then (a) Licensee unconditionally and irrevocably waives the enforcement of such rights and all claims and causes of action of any kind against EnChroma with respect to such rights, and (b) to the extent Licensee cannot (as a matter of law) make such waiver, Licensee unconditionally grants to EnChroma an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sublicensees, under any and all such rights (i) to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Modified Content in any medium or format, whether now known or hereafter discovered, and (ii) to exercise any and all other present or future rights in the Modified Content.
- By Licensee. Subject to the license granted to EnChroma set forth in this Section, Licensee shall retain all right, title and interest in and to any content, materials, text, images, video, or other content (“Licensee Content”) incorporated into or used in the creation of the Modified Content. Licensee unconditionally grants to EnChroma a non-exclusive, perpetual, irrevocable, worldwide, fully-paid right and license, with the right to sublicense through multiple levels of sublicensees, under all of Licensee’s intellectual property rights in any and all Licensee Content used or incorporated in any Modified Content to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Modified Content in any medium or format, whether now known or hereafter discovered, and (c) to exercise any and all other present or future rights in the Modified Content.
- 6. Term and Termination. This Agreement and the licenses granted hereunder are effective on the date Licensee downloads or uses the EnChroma Content and shall continue unless and until this Agreement is terminated pursuant to this section or as elsewhere provided in this Agreement. EnChroma may terminate this Agreement for any or no reason, with or without cause, effective immediately upon written notice to Licensee. Licensee may terminate this Agreement at any time, with or without cause by sending an email to firstname.lastname@example.org with Licensee’s name and the subject “Termination of Content License Agreement”. Upon termination, the licenses granted hereunder shall terminate and Licensee shall cease (and require all Authorized Users to cease) using the EnChroma Content, EnChroma Marks, and any other materials provided under this Agreement and destroy any copies of the foregoing items in Licensee’s or its Authorized Users’ possession or control. The following provisions of this Agreement shall survive any termination of this Agreement: Sections 1.2, 3.2, 3.3, 4, 5, 6, 7, 8, 9, 10 and 11.
- 7. Disclaimer of Warranties. The ENCHROMA CONTENT IS provided TO LICENSEE ON AN “AS-IS” BASIS. ENCHROMA disclaimS all express, implied or statutory warranties relating to the ENCHROMA CONTENT, including merchantability, fitness for a particular purpose, TITLE, and non-infringement. ENCHROMA does not warrant that use of the ENCHROMA CONTENT will be uninterrupted, or error-free, OR that defects will be corrected or that the ENCHROMA CONTENT is free of viruses or other harmful components.
- 8. Limitation of Remedies and Damages. TO THE MAXIMUM EXTENT PERMITTED BY applicable LAW, NEITHER ENCHROMA NOR ITS SUPPLIERS SHALL be responsible or liable with respect to any subject matter of this Agreement or terms or conditions related thereto under any contract, TORT (INCLUDING negligence), strict liability or other theory for any indirect, incidental or consequential damages, OR FOR ANY loss revenues and loss of profits. TO THE MAXIMUM EXTENT PERMITTED BY applicable LAW, ENCHROMA’S aggregate cumulative liability hereunder shall NOT exceed ONE HUNDRED DOLLARS ($100.00). ENCHROMA’S SUPPLIERS shall have no liability arising from or related to this agreement. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THESE TERMS.
- 9. Basis of the Bargain. The warranty disclaimer and limitation of liability set forth above in Section 7 and 8 are fundamental elements of the basis of the agreement between EnChroma and Licensee. EnChroma would not be able to provide the EnChroma Content on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of EnChroma’s suppliers.
- 10. Governing law; Agreement to Arbitrate
- Governing Law. This Agreement will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles.
- Before resorting to formal dispute resolution in accordance with this Section, EnChroma encourages Licensee to first contact EnChroma directly to seek a resolution. Licensee and EnChroma agree that any and all disputes or claims may arise between Licensee and EnChroma relating in any way to this Agreement or Licensee’s use, or inability to use, the EnChroma Content, shall be resolved exclusively through final, binding and confidential arbitration. The location of arbitration shall be Alameda County, California, USA, and the arbitration shall be conducted under the rules of the American Arbitration Association, as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction. Notwithstanding anything in this Agreement to the contrary, to the extent Licensee has in any manner violated or threatened to violate any of EnChroma’s intellectual property rights, EnChroma may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, and Licensee consents to the personal jurisdiction and exclusive venue in such courts.
- 11. Miscellaneous. Neither the rights nor the obligations arising under this Agreement are assignable by Licensee, and any such attempted assignment or transfer shall be void and without effect. 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. Any notice to Licensee may be provided by email. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties with respect to the subject matter hereof are expressly canceled. Except as otherwise expressly provided in this Agreement, any modifications of this Agreement must be in writing and agreed to by both parties. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Licensee agrees that this Agreement will not be construed against EnChroma by virtue of having drafted them. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.
- 12. Questions or Additional Information. If Licensee has questions regarding this Agreement, please send an e-mail to email@example.com.