LICENSE AND SERVICES AGREEMENT ISSUED BY SCAN2FX
YOU SHOULD CAREFULLY READ THE FOLLOWING END USER LICENSE AND SERVICES AGREEMENT BEFORE PURCHASING, DOWNLOADING, VIEWING OR INSTALLING THIS SOFTWARE PROGRAM OR USING THE RELATED ONLINE SERVICE. IF YOU DO NOT AGREE WITH THE TERMS OF THIS LICENSE AND SERVICES AGREEMENT, YOU MAY NOT PURCHASE, DOWNLOAD OR INSTALL, VIEW OR USE THE SOFTWARE.
By selecting the “I accept” button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, viewing or otherwise copying or using all or any portion of the SCAN2FX Software or any related documentation, (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer or client) and acknowledge that such entity (“Entity”) is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such Entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such Entity (if any) or yourself. You may not accept this Agreement on behalf of another Entity unless you are an employee or other agent of such other Entity with the right, power and authority to act on behalf of such other Entity. You, any End Users, and the Entity are considered the “Customer” per this License and Services Agreement. An End User (“End User” or “User”) is any individual that accesses, installs, trials or views SCAN2FX Software or any related documentation. You agree that you will only display or share any SCAN2FX Program or any related documentation with other individuals that have also agreed to this License and Services Agreement.
If you are unwilling to accept this Agreement, or you do not have the right, power and authority to act on behalf of and bind such Entity or yourself as an individual (if there is no such Entity), (a) DO NOT SELECT THE “I ACCEPT” BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT, AND DO NOT INSTALL, DOWNLOAD, ACCESS, VIEW OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THE SCAN2FX MATERIALS.
This software program, any printed materials, any on-line or electronic documentation, and any and all copies and derivative works of such software program and materials (the “Program”) are the copyrighted work of SCAN2FX, and its holding company (“SCAN2FX”). All use of the Program is governed by the terms of this License and Services Agreement (“Agreement”). The Program is solely for use by End Users according to the terms of the Agreement. Any use, reproduction or redistribution of the Program not in accordance with the terms of the Agreement is expressly prohibited.
1. Limited Use License. SCAN2FX, hereby grants, and by installing the Program you Customer thereby accepts, a limited, non-exclusive license and right to install and use one (1) copy of the Program for your Customer’s use on either a home or portable computer subject to the terms of this Agreement. You Customer may not network the Program or otherwise install it or use it on more than one computer at a time. The Program is licensed, not sold. Your Customer’s license confers no title or ownership in the Program.
2. Ownership. All right, title, interest and ownership rights in the Program and any copyright, design right, database right, patents and any rights to inventions, know-how, trade and business names, trade secrets and trade marks (whether registered or unregistered) and any applications thereof and other intellectual property rights (“Intellectual Property Rights”), in or connected with and to the Program and any and all copies thereof (including but not limited to any titles, computer code, methods of operation any related documentation incorporated into the Program) are owned by, belong to and vest in SCAN2FX or its licensors. The Program is protected by the copyright laws of all countries on the Earth, international copyright treaties and conventions and other laws. All rights are asserted and reserved. The Program may contain certain licensed materials and SCAN2FX licensors may act to protect their rights in the event of any violation of this Agreement. All trademarks are the property of their respective owners.
3. Responsibilities of End User and Customer. Subject to the grant of license herein above, Customer and End User may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, adapt, merge, translate, disassemble, decompile, or create derivative works based on or of the Program, or remove any proprietary notices or labels on the Program without the prior consent, in writing, of SCAN2FX.
Where applicable law provides otherwise (all and any modification, adaptations or improvements shall belong to, vest in and be the exclusive property of SCAN2FX on creation in any event); The Program is licensed to you as a single product. Its component parts may not be separated for use on more than one computer.
Customer is entitled to use the Program for personal non-commercial use as described in this Agreement, but Customer is not entitled to, and shall not authorize any End User or other third party to:
Customer must back-up to another secure location, on a regular basis, any data files concerning your Customer’s use of the Program as SCAN2FX has no liability for lost or corrupted data.
4. Node-Locked Subscription Service. Each subscription is tied to a single computer once the license key purchased is used to authenticate the subscription. The subscription cannot be transferred to another computer for the duration subscription term, and major modifications to the computer may grant the license invalid. In such case, a new subscription will need to be purchased for a full service term.
5.1. Fees and Payment. Customer shall pay to SCAN2FX fees in the amount and at the times specified. All Fees shall be payable in the designated currency and, except as otherwise agreed by the parties, are due immediately. All Fees paid are nonrefundable except as may be expressly provided herein. SCAN2FX reserves the right to change fee structures at any time. Renewals of service fees or licenses will be charged at the then current rate structure. SCAN2FX provides multiple Modules or Programs. Purchasing one Program or Module does not grant Customer a license to other Programs or Modules.
5.2. Taxes. All Fees hereunder do not include, and Customer shall be responsible for, any national, federal, regional, state and local excise, withholding, sales, use or similar taxes, or any tariffs, customs or duties that may be applicable under this Agreement (excluding taxes based on SCAN2FX’s income), unless Customer supplies SCAN2FX with a valid tax exemption certificate related thereto. If SCAN2FX has the legal obligation to collect such taxes or fees, Customer shall inform SCAN2FX of such obligation, SCAN2FX shall provide appropriate documentation related to such obligation to Customer, and the appropriate amount shall be paid or reimbursed by Customer.
6. Termination. This Agreement is effective until terminated or upon expiration of Customer’s service term. Customer’s License is limited for use during the timeframe purchased or during any free trial period. Customer may terminate the Agreement at any time by deleting and removing the Program from Customer’s home or portable computer and destroying Customer’s copy of the Program in Customer’s possession. This Agreement will terminate automatically if Customer fails to pay fees, or fail to abide by any of the terms and conditions. SCAN2FX may additionally, at its discretion, give notice to terminate this Agreement in the event that it becomes aware that Customer is failing to comply with the terms and conditions contained herein. In such event, Customer must immediately destroy and erase the Program and all and any copies in Customer’s possession or control and stored on any media whatsoever and on SCAN2FX’s request certify that it has been done. All obligations in Clauses 2, 3, 5-21 of this Agreement will survive Termination or Expiration.
7. Limited WARRANTY; WARRANTY DISCLAIMER. SCAN2FX Warranty. SCAN2FX warrants to Customer that the SCAN2FX Program will conform in all material respects with SCAN2FX ‘s documentation and specifications related to such SCAN2FX Programs (“Program Warranty”). In the event of a breach of the Program Warranty, Customer shall provide written notice thereof to SCAN2FX, and SCAN2FX, at its option, may (i) correct, within a reasonable period of time, any documented and reproducible non-conformance in the SCAN2FX Program; or (ii) if, in SCAN2FX judgment, subpart (i) above is not feasible using commercially reasonable efforts, refund the Fees paid for the non-conforming SCAN2FX Program and terminate this Agreement with respect to such SCAN2FX Program. The Program Warranty does not cover non-conformance due to: (a) modification, configuration or support of the SCAN2FX Program performed by any party other than SCAN2FX or its designated agents, (b) use of the SCAN2FX Program with equipment that does not meet SCAN2FX’s minimum standards for such SCAN2FX Programs, (c) Customer’s or any End User’s use of software other than the SCAN2FX Program, (d) use of the SCAN2FX Program or SCAN2FX Software other than in accordance with this Agreement, or (e) Customer’s or any End User’s failure to provide accurate or legible information or other acts of negligence or willful misconduct. THIS SECTION 7 SETS FORTH SCAN2FX’s ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SCAN2FX PROGRAM AND SCAN2FX SOFTWARE ARE PROVIDED BY SCAN2FX HEREUNDER WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SCAN2FX DOES NOT GUARANTEE THAT THE SCAN2FX SERVICES OR SCAN2FX SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, BE ERROR-FREE OR ACCURATE, OR OPERATE WITHOUT INTERRUPTION. WITHOUT LIMITING THE FOREGOING, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SCAN2FX PROGRAMS PROVIDED HEREUNDER DOES NOT GUARANTEE CUSTOMER’S COMPLIANCE WITH ANY REGULATIONS, LAWS, STATUTES OR RULES AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH SUCH LEGAL REQUIREMENTS AND FOR OBTAINING LEGAL COUNSEL AND ADVICE IN CONNECTION THEREWITH.
8. INDEMNIFICATION. SCAN2FX, AT ITS OWN EXPENSE (INCLUDING PAYMENT OF ATTORNEYS FEES, EXPERT FEES AND COURT COSTS), SHALL DEFEND CUSTOMER FROM ANY AND ALL THIRD PARTY CLAIMS THAT THE SCAN2FX PROGRAM OR SCAN2FX SOFTWARE INFRINGES OR MISAPPROPRIATES ANY INTELLECTUAL PROPERTY RIGHTS OF SUCH THIRD PARTY IN THE UNITED STATES AND SHALL INDEMNIFY CUSTOMER FROM ANY AMOUNTS ASSESSED AGAINST CUSTOMER IN A RESULTING JUDGMENT OR AMOUNTS TO SETTLE SUCH CLAIMS, PROVIDED THAT CUSTOMER (I) GIVES SCAN2FX PROMPT WRITTEN NOTICE OF ANY SUCH CLAIM, (II) PERMITS SCAN2FX TO CONTROL AND DIRECT THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM, AND (III) PROVIDES SCAN2FX ALL REASONABLE ASSISTANCE (AT SCAN2FX’S EXPENSE) IN CONNECTION WITH THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM. Options. If the SCAN2FX Program or SCAN2FX Software are, or in SCAN2FX’s opinion are likely to be, infringing or misappropriating third party Intellectual Property, SCAN2FX, at its expense and in its sole discretion, may: (i) procure the right to allow Customer to continue to use the SCAN2FX Program or SCAN2FX Software; or (ii) modify or replace the SCAN2FX Program or SCAN2FX Software or infringing portions thereof to become non-infringing. If neither (i) nor (ii) is commercially feasible, SCAN2FX shall have the right to terminate Customer’s rights to use the affected portion of the SCAN2FX Program or SCAN2FX Software and refund any pre-paid Fees corresponding to such portion of SCAN2FX Program or SCAN2FX Software. Exclusions. Notwithstanding the foregoing, SCAN2FX shall have no obligations under this Section 6 to the extent any infringement claim is based upon or arising out of (i) any modification or alteration to the SCAN2FX Program or SCAN2FX Software not made by SCAN2FX, (ii) any combination or use of the SCAN2FX Programs or SCAN2FX Software with products or services not supplied by SCAN2FX or approved in writing by SCAN2FX in advance of such combination, (iii) Customer’s continuance of allegedly infringing activity after being notified thereof, or after being informed of modifications that would have avoided the alleged infringement, (iv) SCAN2FX’s compliance with the specifications or requirements of Customer, and/or (v) use of the SCAN2FX Program or SCAN2FX Software not in accordance with the applicable SCAN2FX documentation or the terms of this Agreement. Customer shall indemnify, defend and hold harmless SCAN2FX from all damages, settlements, attorneys’ fees and expenses related to claims of infringement or misappropriation excluded under this Section 8.
Sole Remedy. THE FOREGOING REMEDIES CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND SCAN2FX’S ENTIRE LIABILITY, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL SCAN2FX BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT SCAN2FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL THE AGGREGATE LIABILITY OF SCAN2FX UNDER THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY) EXCEED FEES RECEIVED BY OR OWED TO SCAN2FX FROM CUSTOMER in the twelve (12) month period prior to the claim giving rise to liability REGARDLESS OF WHETHER SCAN2FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
10. Proprietary Rights. Ownership. Except for the licenses expressly granted by SCAN2FX to Customer and/or End User under this Agreement or a EULA, (i) SCAN2FX reserves all rights, title and interest in and to the SCAN2FX Programs, SCAN2FX Software, and any related documentation, and all Intellectual Property Rights therein and (ii) no right, title, ownership, interest or license in or to the SCAN2FX Program or SCAN2FX Software or any Intellectual Property Rights therein, whether by implication, estoppel or otherwise, is granted, assigned or transferred to Customer under or in connection with this Agreement. The SCAN2FX Software is licensed and not sold to Customer and its End Users. All rights not granted under this Agreement or pursuant to a EULA are expressly reserved by SCAN2FX. End Users and Customer grant SCAN2FX an irrevocable, worldwide, royalty-free license to commercialize any feedback from End Users or Customer. All concepts, data, drawings, diagrams, ideas, software, source code, patents, processes, ideas and inventions (whether patentable or not), schematics, trade secrets, patents, patent applications, plans, information, technology, and derivative works generated as a result of feedback shall be the sole property of SCAN2FX.
Use of Data and Feedback. Customer agrees that SCAN2FX may collect and use technical information and feedback received from Customer relating to the SCAN2FX Programs to support and improve its products and services. SCAN2FX may disclose this information to others in conformity with SCAN2FX’s privacy policies, but not in a form that personally identifies Customer or any End Users. SCAN2FX shall have the right to collect and use data generated by and through Customer’s and its End Users’ access to and use of SCAN2FX Program and SCAN2FX Software and residing on SCAN2FX’s servers in aggregate, non-personally identifiable form for any purpose. SCAN2FX may also contact Customer via email or phone for support, marketing, sales and other purposes.
11. Equitable Remedies. Customer hereby agrees that SCAN2FX would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore agrees that SCAN2FX shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as SCAN2FX may otherwise have available to it under applicable laws. Notwithstanding the foregoing, in the event of of Customer’s or others’ unauthorized access to or use of the Program in violation of the Agreement, SCAN2FX is entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
12. Amendment, Alteration Or Modification. This Agreement may be amended, altered or modified only by an instrument in writing specifying such amendment, alteration or modification, which is executed by both parties. In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect.
13. Compliance with Laws; Export Control. Customer shall use the SCAN2FX Programs and SCAN2FX Software in compliance with all applicable laws, statutes, rules and regulations. Customer acknowledges that the SCAN2FX Programs, SCAN2FX Software or other technical information provided hereunder may be subject to United States or other governments’ export laws, rules and regulations, and any use or transfer of that technical information or products made using such technical information must be permitted or authorized under those laws, rules or regulations.
14. Notice. Any and all notices or other information to be given by one of the parties to the other shall be deemed sufficiently given when forwarded by email to the other party. Such notices shall be deemed to have been received on the first business day following the day of receipt confirmation by SCAN2FX. The address of either party may be changed at any time by giving ten (10) business days prior written notice to the other party in accordance with the foregoing.
15. Publicity. During the term: (i) Customer consents to SCAN2FX’s use of Customer’s name and the general description of Customer’s relationship with SCAN2FX in press releases and other marketing materials; and (ii) SCAN2FX may publicize the use of the SCAN2FX Programs by Customer by including Customer’s name and logo in SCAN2FX’s customer lists and on SCAN2FX’s website.
16. Relationship of the Parties. Neither the making of this Agreement nor the performance of its provisions shall be construed to constitute either of the parties hereto an agent, employee, partner, joint venturer, or legal representative of the other.
17. Severability; Waiver. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
18. Assignment. SCAN2FX may re-assign all of its rights and obligations under this Agreement at any time. All terms and provisions of this Agreement are binding upon and inure to the benefit of the parties and their successors. Customer may not re-assign its rights and obligations.
19. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding rules governing conflict of law and choice of law. The federal and state courts within New York City, New York, USA, shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts.
20. Force Majeure. Neither party will be deemed in default of this Agreement to the extent that performance of their obligations (other than payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the reasonable control of such party, provided that such party gives the other party prompt written notice thereof, and uses its best efforts to cure the delay.
21. Entire Agreement. This Agreement and any Exhibits attached hereto sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained in this Agreement shall have any force or effect. This Agreement may be amended only upon the written consent of both parties. This Agreement supersedes any conflicting terms in any purchase order or acknowledgment, or in any license or service agreement included with or incorporated in the SCAN2FX Programs.
© Copyright 2019 SCAN2FX. All Rights Reserved. SCAN2FX, SCAN2FX Depth Fixer, SCAN2FX Exporter, SCAN2FX Mesh Modeler, SCAN2FX Photo Projector, SCAN2FX Texture, and the SCAN2FX logo are trademarks of SCAN2FX.