Cantemo End User License Agreement
This End-User License Agreement ("EULA" or “Agreement”) is entered between the
company or organization that has licensed this Software (“you” or “Customer”) and
Codemill AB, (SE556762383901), a company registered in Sweden ("Codemill”
or “Company”). By installing and using the Software, Customer accepts the Software
and agrees to the terms of this EULA. If you do not agree to any of the terms of this
EULA, then you must not install, distribute or use the Software.
1. BACKGROUND: Codemill is the owner of the Product that enables users to
manage digital media assets such as audio, video, and image files. Customer wishes
to obtain a license to the Product. Customer has entered into the Customer
Agreement with Reseller, containing, inter alia, provisions on Customer´s right to use
the Product and Reseller´s obligations with respect to the Product. This Agreement
contains supplementary/additional terms and conditions concerning the Product and
Customer´s use thereof. Customer contract relation (including its rights and
obligations) is only against Reseller and acknowledges that Codemill shall not have
any obligations or liabilities against Customer other than to the limited extent
expressly stipulated in this EULA.
2. DEFINITIONS:
2.1. "Cloud Service" shall mean an external facing, multiple interconnected globally
distributed datacenters, always including Multi-tenancy capability controlled by an
application layer that creates a single federated application interface. Cloud Service
does not mean a direct hosting service for End-Users' own hardware, software and content.
2.2. “Customer Agreement” means the agreement between Customer
and Reseller concerning, inter alia, Reseller´s supply of the Product to
Customer and Customer´s use of the Product and the Reseller´s and
Customer´s respective rights and obligations.
2.3. “Date of Delivery” means the day the production key for System was
generated by Codemill upon request from Reseller.
2.4. “Documentation” means all user and references manuals,
documentation, tutorials and help files for the Product provided or
made available by Company regardless of format.
2.5. “Live System” means System running on a production key.
2.6. “Multi-tenancy” means the capability of individual end-users, not
directly employed by Customer, using the same instance of the
Software but with separated content, rights and usage data.
2.7. “Product” means the Software and related Documentation.
2.8. “Reseller” means Codemill’s authorized software reseller and
installation, services, support and maintenance provider with whom
Customer has entered the Customer Agreement.
2.9. “Software” means Company’s unmodified, object-code version of
Cantemo Standard Edition software, including any Updates
provided by Company or its authorized providers.
2.10. “Specifications” means the technical specifications of the Software
set forth in the Documentation.
2.11. “System” means Customer´s systems, software and equipment
involved in information technology, including without limitation video
production and media asset management.
2.12. “Temporary Key” means limited, time-bound and watermarked proxy
generating key to Software.
2.13. “Updates” means subsequent releases of the Software that add new
features, functionality or improved performance; bug or error fixes,
patches, workarounds and maintenance releases; new point releases,
including those denoted by a change to the right of the first decimal
point (e.g., version 2.0 to version 2.1) and new major version releases,
regardless of the version name or number, but including those
denoted by a change to the left of the decimal point (e.g., version 3.0
to version 4.0).
2.14. “User” means each defined named individual user, natural person, of
the Product.
3. LICENSE AND OWNERSHIP:
3.1. Codemill hereby confirms that Customer, subject to i) Customer´s
entering into the Customer Agreement and ii) Customer´s fulfillment
of all its obligations under the Customer Agreement (including
payment of the license fees thereunder), will have a non-exclusive,
perpetual, irrevocable, paid-up, world-wide license, without the right
of further sublicense, to (i) access, display and use the Software and
the Documentation solely for Customer’s internal purposes in the
normal course of its business, and (ii) make no more than one copy of
the Software and Documentation solely for non-production or
disaster recovery purposes as more fully described in Section 3.33
below. This license shall be limited to the number of Users set forth in
the applicable order form in the Customer Agreement. This license is
(a) perpetual unless the license is terminated in accordance with this
Agreement, and (b) non-transferable by Customer. Software licensed
hereunder may be accessed by Customer’s internal Users. Customer
acknowledges that the right described in this Section 3.1 is subject to
Customer paying the related license fees under the Customer
Agreement in full.
3.2. Updates and releases, if any, made available to Customer by Reseller
(or Codemill) is proprietary software of Codemill and will be subject
to the terms and conditions set out herein. Customer agrees that it
may install, use, and execute the Software only on Customer’s
equipment and hardware. Customer may not decompile, decrypt,
reverse engineer, disassemble, or otherwise translate the Software.
3.3. Customer may make back-up non-active copies of the Software only if
and to the extent that this is necessary for the purposes of securing
future use of the Software (e.g. in the case of a system failure). Where
possible, the back-up copy must be marked as such and must bear the
Codemill AB copyright notice. If the hardware on which the Software
is used is exchanged, the Software must first be deleted from the
hardware. Codemill does not bear any responsibilities or assume any
liability of any kind for such copies of Software. Codemill provides
means for the Reseller to independently generate Temporary Keys for
this specific purpose.
3.4. Ownership. Unless explicitly otherwise provided, all of Codemill’s
intellectual property rights in the Product and any Updates to it shall
remain the exclusive property of Codemill, and all of Customer’s
intellectual property rights in its Systems and its software and media
assets shall remain the exclusive property of Customer and nothing in
relation to this Agreement shall operate as a transfer of Codemill’s
intellectual property rights to Customer or Customer’s intellectual
property rights to Codemill.
4. LICENSE RESTRICTIONS:
4.1. The rights set forth in Section 3 do not include Cloud Services rights
for the Customer, the rights to resell licenses or the granting of sublicenses.
4.2. Customer’s right of use does not include a right to use the source
code of the Software.
4.3. Except as expressly permitted in writing in advance by Codemill,
Customer is not allowed to have the Software modified, leased, lent
to or by third parties or provided to third parties for temporary use as
part of EDP (Electronic Data Processing) services in particular as part
of operating a computing center or outsourcing or as part of
application service provider agreements.
5. MAINTENANCE:
5.1. Unless agreed otherwise by Codemill in writing, Codemill is not
responsible for any software maintenance or support to Customer. Any
such undertakings will be regulated in the Customer Agreement and
between Customer and Reseller.
6. LIMITED WARRANTY AND DISCLAIMER:
6.1. Codemill represents and warrants that (i) it has all rights, licenses,
consents and authorizations necessary to grant the rights and licenses
granted in this Agreement; (ii) the Software will operate substantially
in conformity with its applicable Documentation; (iii) the
Documentation substantially reflects all major features and functions
of the Software; (iv) it shall comply with all applicable Swedish and
European Union laws, rules and regulations when performing its
obligations under this Agreement; and (v) it has taken reasonable
measures to protect the software against viruses or Trojan horses.
6.2. Concerning all warranties and other undertakings, please refer to the
Customer Agreement between Reseller and Customer. Reseller is for
the sake of clarity solely liable for any undertakings (including
warranties) made in the Customer Agreement and Codemill shall
have no liability for such undertakings.
6.3. CODEMILL PROVIDES NO REMEDIES OR WARRANTIES, WHETHER
EXPRESS OR IMPLIED, FOR ANY SAMPLE APPLICATION CODE, TRIAL
VERSION, OR THE NOT FOR RESALE VERSION. THESE ARE PROVIDED
"AS IS".
6.4. CODEMILL AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES
AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR
OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY
OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT.
CODEMILL DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE
OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR
REMEDIES WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED
HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED
FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE
CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN,
CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR
FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS,
AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
CODEMILL SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTY OF FITNESS FOR SUCH PURPOSES.
6.5. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY
CODEMILL, ITS RESELLERS, DISTRIBUTORS, AGENTS OR EMPLOYEES
SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF
ANY WARRANTY PROVIDED HEREIN.
7. LIMITATION OF LIABILITY:
7.1. NEITHER CODEMILL NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR
ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT
NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT
OR TO ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS
INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR
INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF
LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE,
EVEN IF CODEMILL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET
FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE.
7.2. CODEMILL’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS EULA
IS LIMITED TO, AND SHALL IN NO EVENT EXCEED, AN AGGREGATE
AMOUNT CORRESPONDING TO SEVENTY-FIVE (75) PER CENT OF THE
LICENSE FEE FOR THE PRODUCT PAID BY YOU TO RESELLER PURSUANT
TO THE CUSTOMER AGREEMENT.
8. TERM AND TERMINATION:
8.1. Term. The term of this Agreement begins on the Date of Delivery.
8.2. Termination For Material Breach. Either party may terminate this
Agreement as follows:
8.2.1. upon fourteen (14) days’ written notice if the other party has
materially breached any of its obligations under this
Agreement. This Agreement terminates automatically without
the need for further notice if the breaching party fails to cure
its breach within thirty (30) days after receiving such written
notice. Codemill may, in addition, terminate this Agreement,
as just said, in the event that Customer has materially
breached its obligations under the Customer Agreement with
Reseller.
8.3. Bankruptcy. If either party undergoes a bankruptcy, receivership or
reconstruction or enters into liquidation or becomes insolvent, then
the other party may immediately terminate this Agreement upon
written notice.
8.4. Effect of Termination. Unless Company terminates this Agreement as
a result of Customer´s material breach as set out above, Customer
may continue using the Software under the perpetual license
provided (i) that Customer has paid the applicable Software license
fee and fulfilled its other obligations under the Customer Agreement.
Upon termination of this Agreement, each party will promptly return
or destroy, at the other party’s option and request, all of the other
party’s confidential information then held by it. If Company
terminates this Agreement for Customer´s material breach, then the
license to the Software and Documentation shall terminate upon the
termination of the Agreement. In such event, Customer shall be
obligated to destroy all copies of the Software and Documentation
without undue delay.
9. NOTICES: All notices which are required to be given hereunder shall be in
writing in the English language and shall be sent to the address of the recipient set
out on the recipients official website or such other address has the recipient may
designate in writing. Any such notice may be delivered personally or by recorded
delivery or facsimile transmission and shall be deemed to have been served; if by
hand, when delivered; if by first class post, upon recorded receipt and; if by facsimile
transmission, when transmitted.
10. GOVERNING LAW; JURISDICTION: Any dispute, controversy or claim arising
out of or in connection with the Agreement, or the breach, termination or invalidity
thereof, shall be finally settled by arbitration administered by the Arbitration
Institute of the Stockholm Chamber of Commerce (the SCC). The Rules for Expedited
Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce
shall apply, unless the SCC, taking into account the complexity of the case, the
amount in dispute and other circumstances, determines, in its discretion, that the
Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of
Commerce shall apply. In the latter case, the SCC shall also decide whether the
arbitral tribunal shall be composed of one or three arbitrators. The place of
arbitration shall be Stockholm, Sweden. The language to be used in the proceedings
shall be English. The Agreement shall be governed by the laws of Sweden.
11. GENERAL PROVISIONS:
11.1. This Agreement may not be modified in whole or in part except in a
written amendment duly signed by Codemill and Customer.
11.2. The EULA contains the entire understanding between Company and
Customer, and supersedes any previous agreement (oral or written)
regarding its subject matter.
11.3. Neither party may assign its rights or delegate its duties either in
whole or in part without the prior written consent of the other party.
Any assignment in violation of this provision is null and void.
11.4. A waiver of any term or condition or breach of this Agreement must
be in writing and no waiver of any term or condition or any breach
should be deemed a waiver of any other term or condition or breach.
11.5. If any provision or portion of this Agreement is held to be void or
unenforceable, the remaining provisions of this Agreement and the
remaining portion of any provision held void or unenforceable in part
shall continue in full force and effect.
11.6. Company shall be entitled to refer to Customer in its marketing on its
web site without Customer´s prior consent. Other use of Company for
referral purposes shall require prior written consent by Company.
11.7. The headings set forth in this Agreement are for convenience only
and will not control or affect the meaning or construction of the
provisions of this Agreement.
