TERMS OF SALE
AND SOFTWARE LICENSE AGREEMENT
These Terms of Sale and Software License Agreement (“Terms of Sale”) are entered into by and
between the STUDIO SOS entity described in the following paragraphs (“STUDIO SOS”) and you (“Customer”), for Products and Services, unless STUDIO SOS and Customer enter into or have entered into another agreement (including but not limited to a written, click-wrap, click-and-accept or electronic agreement) regarding the purchase and license of the specific STUDIO SOS Products or Services being purchased and such agreement is in effect at the time the applicable Purchase Order is received by STUDIO SOS (“Existing Agreement”), in which case the terms and conditions of such Existing Agreement shall govern the purchase and license of those STUDIO SOS Products or Services.
The following exhibits are incorporated into these Terms of Sale:
Exhibit A: End User License Agreement
1.0 DEFINITIONS
1.1 Affiliate means any corporation, firm, partnership or other entity that directly or indirectly controls, or is controlled by, or is under common control with STUDIO SOS or
Customer.
1.2 STUDIOSOS.biz is STUDIO SOS’s suite of on-line services and information at
http://www.STUDIO SOS.biz.
1.3 STUDIO SOS Branded means a Product or a Service bearing a trademark or service mark
of STUDIO SOS LLc. or any STUDIO SOS Affiliate.
1.4 Documentation is user manuals, training materials, Product descriptions and specifications, technical manuals, license agreements, supporting materials and other information relating to Products or Services offered by STUDIO SOS, whether distributed in print, electronic, CD-ROM or video format.
1.5 Effective Date is the date these Terms of Sale are electronically accepted, clickaccepted or, if signed in hard copy by Customer, the date of last signature, or in the absence of any of the forgoing, these Terms of Sale shall be effective from the date an order is placed by Customer.
1.6 Hardware is the tangible STUDIO SOS product acquired by Customer from STUDIO SOS and
listed on the Price List. Hardware does not include any tangible product listed on the Price List in the name of a third party.
1.7 Network Services are any services offered by Customer, as Customer’s primary business model, which services may include the following: access to the Internet, data and voice transmission and any other communications service furnished by Customer by means of Customer’s communications network.
1.8 Price List is the price list(s) published at STUDIO SOS.biz applicable to the relevant
STUDIO SOS entity to which each Purchase Order is issued by Customer.
1.9 Products are, individually or collectively as appropriate, Hardware, Software and Documentation listed on the then-current Price List.
1.10 Purchase Order is an order issued by Customer to STUDIO SOS for Products or Services
to be purchased, licensed or provided under these Terms of Sale.
1.11 Services are any maintenance, technical support, or any other services performed
or to be performed by STUDIO SOS, provided that “Services” does not include those
services for which STUDIO SOS requires a separate statement of work to be executed
between the parties.
1.12 Software is the machine readable (object code) version of the computer programs
listed from time to time on the Price List or provided with the Hardware and made
available by STUDIO SOS for license to Customer including firmware, and any copies
made, bug fixes for, updates to, or upgrades thereof. Software does not include
any computer programs listed on the Price List in the name of a third party.
1.13 Territory is any country(ies) in which Customer has been granted STUDIO SOS resale
certifications, or in the absence of any such certifications, the country in which
Customer’s principal place of business is located.
2.0 SCOPE
2.1 These Terms of Sale set forth the terms and conditions for Customer’s purchase of
Products and Services solely for use in the Territory and solely for (i) Customer’s
internal business use, (ii) providing Network Services if Customer’s primary
business is Network Services, or (iii) resale only if and where Customer has been
granted appropriate reseller certifications or distribution rights by STUDIO SOS for the
specific Products or Services to be resold/distributed. Customer shall not resell to,
make available for use by, or otherwise transfer title to any Product to, any end user
or other third party, including any reseller, without such reseller certifications or
distribution rights.
2.2 Customer is not authorized by these Terms of Sale to resell Products to any United
States Federal, state, or local entity.
3.0 PRICES
3.1 Prices for Products and Services shall be those specified in STUDIO SOS’s then current
Price List, less any applicable discount at the time of acceptance of the Purchase
Order by STUDIO SOS, or in accordance with an applicable, valid written price quotation, if
any, submitted by STUDIO SOS to Customer for such Products or Services.
3.2 All prices are exclusive of any freight, handling and shipping insurance charges,
taxes, fees and duties or other similar amounts, however designated, including
without limitation value added, sales and withholding taxes which are levied or
based upon the prices, charges or upon these Terms of Sale. Customer shall pay
any taxes related to Products and Services provided pursuant to these Terms of
Sale (except for taxes based on STUDIO SOS’s revenue income) or shall present an
exemption certificate acceptable to all relevant taxing authorities. Applicable taxes
shall, to the extent practical, be billed as a separate item on the invoice.
4.0 ORDERS
4.1 Customer shall purchase or license Products or Services by issuing a Purchase
Order, signed, if requested by STUDIO SOS, or (in the case of electronic transmission) sent
by its authorized representative, indicating specific Products and Services, STUDIO SOS
Product numbers, quantity, unit price, total purchase price, shipping instructions,
requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if
applicable, contract reference, and identity of the end user for each Product and
Service. No contingency contained on any Purchase Order shall be binding upon
STUDIO SOS. The terms of these Terms of Sale shall apply, regardless of any additional
or conflicting terms on any Purchase Order or other correspondence or
documentation submitted by Customer to STUDIO SOS, and any such additional or
conflicting terms are deemed rejected by STUDIO SOS.
4.2 STUDIO SOS shall use commercially reasonable efforts to provide order acknowledgement
information within three (3) business days for all Purchase Orders placed on
STUDIO SOS.biz or within ten (10) business days of receipt for Purchase Orders placed
by any other method. Upon and subject to credit approval by STUDIO SOS following
STUDIO SOS’s receipt of any Purchase Order, STUDIO SOS Customer Service will review and
accept or decline any or all Purchase Orders for the STUDIO SOS entity that will supply the
Products or Services, and no other person is authorized to accept Purchase Orders
on behalf of STUDIO SOS. STUDIO SOS Customer Service may accept a Purchase Order even if
some of the information required by Section 4.1 above is missing or incomplete.
4.3 Customer may defer Product shipment for up to thirty (30) days from the original
shipping date scheduled by STUDIO SOS, provided written or electronic notice (issued, in
either case, by an authorized representative of Customer) is received by STUDIO SOS at
least ten (10) days before the originally scheduled shipping date. Cancelled
Purchase Orders, rescheduled shipments or Product configuration changes
requested by Customer less than ten (10) days before the original scheduled
shipping date shall be subject to (a) acceptance by STUDIO SOS, and (b) a charge of
fifteen percent (15%) of the total invoice amount relating to the affected Products.
STUDIO SOS reserves the right to reschedule shipment in cases of configuration changes
requested by Customer within ten (10) days of scheduled shipment. No
cancellation shall be accepted by STUDIO SOS where Products are purchased with
implementation services, including design, customization or installation services,
except as may be set forth in the agreement or statement of work under which the
services are to be rendered.
5.0 SHIPPING AND DELIVERY
5.1 Scheduled shipping dates will be assigned by STUDIO SOS as close as practicable to
Customer’s requested date based on STUDIO SOS’s then-current lead times for the
Products. STUDIO SOS will communicate scheduled shipping dates in the order
acknowledgement or on STUDIO SOS.biz. Unless given written instruction by Customer,
STUDIO SOS shall select the carrier.
5.2 Shipping options available as well as applicable shipment terms (per Incoterms
2010) are set forth in the Shipping Terms. The selected shipping option
shall be indicated on the Purchase Order. Where applicable, Customer shall pay
the shipping and handling charges in addition to the purchase price for the
Products, which will be included in remittance and/or commercial invoices issued by
STUDIO SOS. Title and risk of loss shall transfer from STUDIO SOS to Customer and delivery shall be deemed to occur in accordance with the Shipping Terms. Customer shall be responsible for all freight, handling and insurance charges subsequent to delivery.
5.3 Where Customer places orders on any STUDIO SOS Affiliate other than STUDIO SOS, Customer shall pay invoices issued by such entity with respect to such orders and the delivery
terms agreed with such entity shall apply. Different shipping terms may apply to
such Purchase Orders as set forth in the Shipping Terms Exhibit or otherwise as
set out on STUDIO SOS.biz.
5.4 Customer shall assume responsibility for compliance with applicable export laws
and regulations, including the preparation and filing of shipping documentation
necessary for export clearance. This also applies in cases where Customer
requests in its Purchase Order delivery of Products to Customer’s forwarding agent
or another representative in the country of shipment. Customer agrees not to use
any export licenses owned by STUDIO SOS or any of its Affiliates.
For shipments under FCA as per the Shipping Terms Exhibit, Customer specifically
agrees to provide STUDIO SOS with the complete name and address of each End User
either (a) in the Purchase Order issued, or (b) in writing within five (5) days of
receiving a request by STUDIO SOS, and other information required under this Agreement
or requested by STUDIO SOS. Export clearance will ensure utilizing STUDIO SOS’s general global
export licenses or in the case a general global license does not include the listed
End User destination, then individual export licenses must be obtained prior to
export. Customer accepts any additional delays caused by the export licensing
process as well as delays to comply with conditions of the individual export license.
5.5 STUDIO SOS shall not be liable for any loss, damage, or penalty for delay in delivery or for
failure to give notice of any delay. Except in accordance with the applicable
shipping terms set forth in these Terms of Sale, STUDIO SOS shall not have any liability in
connection with shipment, nor shall the carrier be deemed to be an agent of STUDIO SOS.
5.6 All sales are final. Except as provided in STUDIO SOS’s warranty statements, STUDIO SOS does
not accept returns unless (i) STUDIO SOS shipped a product other than as specified in the
Purchase Order, (ii) such Product is unopened, and (iii) the Product is returned in
accordance with STUDIO SOS’s then current RMA policy and procedures.
6.0 PAYMENT
Upon and subject to credit approval by STUDIO SOS, payment terms shall be thirty (30) days from
shipping date. All payments shall be made in the currency of the Price List applicable to the
Purchase Order or in one of the local currencies made available by STUDIO SOS, subject to
Customer and STUDIO SOS entering into a local currency agreement. If at any time Customer is
delinquent in the payment of any invoice, or is otherwise in breach of these Terms of Sale,
STUDIO SOS may, in its discretion, and without prejudice to its other rights, withhold shipment
(including partial shipments) of any order, require Customer to prepay for further shipments,
and/or withhold the provision of Services, until complete payment has been received. Any
sum not paid by Customer when due shall bear interest from the due date to the date of
payment, such interest to run day to day and after as well as before any judgment at a rate
of (i) ten per cent per annum or (ii) the maximum rate permitted by law, whichever is less.
7.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING
7.1 Subject to the terms contained in Exhibit A (STUDIO SOS’s End User License Agreement
(“EULA”)), STUDIO SOS grants to Customer a non-exclusive, non-transferable license (a)
to use the Software and Documentation for Customer’s internal use, and (b) where
Customer is a certified STUDIO SOS reseller or authorized distributor, to market and Resell
the Software and related Documentation in the Territory during the term of these Terms of Sale, solely as permitted by Section 2.0 (Scope) and this Section 7.0
(Proprietary Rights And Software Licensing) of these Terms of Sale. Any resale of
Software or Documentation to any person or entity other than as expressly
permitted by Section 2.0 (Scope) is expressly prohibited. Customer may not
sublicense, to any person or entity, any rights to distribute the Software or
Documentation.
7.2 Where Customer is a certified STUDIO SOS Reseller, Customer shall provide a copy of the
STUDIO SOS EULA to each end user with delivery of the Product or prior to installation of
the Software. Customer shall notify STUDIO SOS promptly of any breach or suspected
breach of the STUDIO SOS EULA and further agrees that it will, at STUDIO SOS’s request, assist
STUDIO SOS in efforts to preserve STUDIO SOS’s intellectual property rights including pursuing an
action against any breaching third parties.
8.0 LIMITED WARRANTY
8.1 Products. The warranties for Products as per terms of sale.
8.2 Notwithstanding any other term of these Terms of Sale, STUDIO SOS’s sole and exclusive
warranty and obligations are set forth in STUDIO SOS’s Limited Warranty Statement
delivered with the Product and this Section 8.0.
8.3 Customer shall not make any warranty commitment, whether written or oral, on
STUDIO SOS’s behalf. Customer shall indemnify STUDIO SOS against any warranties made in
addition to STUDIO SOS’s standard warranty and for any misrepresentation of STUDIO SOS’s
reputation or of STUDIO SOS’s Products and Services.
8.4 Services. Services provided hereunder shall be performed in a workmanlike
manner consistent with industry standards. Customer must notify STUDIO SOS promptly,
but in no event more than thirty (30) days after completion of the Services, of any
claimed breach of this warranty. Customer’s sole and exclusive remedy for breach
of this warranty shall be, at STUDIO SOS’s option, re-performance of the Services, or
termination of these Terms of Sale or the applicable Service and return of the
portion of the Service fees paid to STUDIO SOS by Customer for such non-conforming
Services. The provision of Services under these Terms of Sale shall not extend the
warranties provided with any Hardware purchased or Software licensed by
Customer.
8.5 Restrictions. The limited warranties referenced in this Section 8.0 do not apply if
the Product (a) has been altered, except by STUDIO SOS, (b) has not been installed,
operated, repaired, used or maintained in accordance with instructions made
available by STUDIO SOS, (c) has been subjected to abnormal or unusual physical or
electrical stress or environmental conditions, misused, or negligently handled or
operated; (d) is acquired by Customer for beta, evaluation, testing, demonstration
purposes or other circumstances for which STUDIO SOS does not receive a payment of a
purchase price or license fee.
8.6 The limited warranties referenced in this Section 8.0 do not apply to any Software
or Hardware that may be offered for sale on the Price List in the name of a third
party.
8.7 Disclaimer of Warranty. Except as expressly provided in this Section 8.0, STUDIO SOS
hereby disclaims and Customer waives all representations, warranties, conditions
or other terms (whether express, implied, or statutory), including, without limitation,
any warranty, condition, or term (a) of merchantability, fitness for a particular
purpose, reasonable care and skill, noninfringement, satisfactory quality, accuracy, or system integration, or (b) arising from any course of dealing, course of
performance, or usage in the industry. To the extent permitted by law, if a
warranty, condition, or term cannot be disclaimed, such warranty, condition, or term
shall be limited in duration to the applicable express warranty period.
9.0 CONFIDENTIAL INFORMATION
9.1 “Confidential Information” to be disclosed by Customer under these Terms of Sale
is information regarding Customer’s network operations and technical plans and
marketing and financial data, and “Confidential Information” to be disclosed by
STUDIO SOS under these Terms of Sale is information regarding STUDIO SOS’s Products and
Services, technical, financial, and marketing data, information relating to future
product and service development, and information posted on STUDIO SOS.biz.
9.2 The receiving party (“Receiving Party”) may use the Confidential Information solely
for the purpose of furtherance of the business relationship between the parties, as
provided in these Terms of Sale and shall not disclose the Confidential Information
to any third party, other than to employees of the Receiving Party who have a need
to have access to and knowledge of the Confidential Information, solely for the
purpose authorized above. Notwithstanding the foregoing, when STUDIO SOS is the
Receiving Party, it may disclose Confidential Information to any employee of STUDIO SOS
or STUDIO SOS Systems, Inc.’s directly and indirectly wholly owned subsidiaries who have
a need to have access to or knowledge of the Confidential Information. Each party
shall take appropriate measures by instruction and agreement prior to disclosure to
such employees to assure against unauthorized use or disclosure. Information
(other than that on STUDIO SOS.biz) disclosed by the disclosing party (“Disclosing Party”)
in written or other tangible form will be considered Confidential Information only if
such information is conspicuously designated as “Confidential,” “Proprietary” or
bears a similar legend. Information disclosed orally shall be considered
Confidential Information only if: (i) identified as confidential, proprietary or the like
at the time of disclosure, and (ii) confirmed as confidential, proprietary or the like in
writing within thirty (30) days of disclosure. Confidential Information disclosed to
the Receiving Party by any Affiliate or agent of the Disclosing Party is subject to
these Terms of Sale.
9.3 The Receiving Party shall have no obligation with respect to information that (i) was
rightfully in possession of the Receiving Party without any obligation of
confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently
becomes, legally and publicly available without breach of these Terms of Sale; (iii)
is rightfully obtained by the Receiving Party from a source other than the Disclosing
Party without any obligation of confidentiality; (iv) is developed by or for the
Receiving Party without use of the Confidential Information and such independent
development can be shown by documentary evidence; or (v) is disclosed by the
Receiving Party pursuant to and in accordance with a valid order issued by a court
or government agency, provided that the Receiving Party provides (a) prior written
notice to the Disclosing Party of such order and (b) the Disclosing Party prior
opportunity to oppose or restrict such disclosure. Upon written demand by the
Disclosing Party, the Receiving Party shall: (i) cease using the Confidential
Information, (ii) return the Confidential Information and all copies, notes or extracts
thereof to the Disclosing Party within seven (7) days of receipt of demand, and (iii)
upon request of the Disclosing Party, certify in writing that the Receiving Party has
complied with the obligations set forth in this paragraph.
9.4 Each party shall retain all right, title and interest to such party’s Confidential
Information. No license to any intellectual property (or application for intellectual
property protection) is either granted or implied by the conveying of Confidential
Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software disclosed to it and shall not remove, overprint or deface
any notice of copyright or confidentiality, trademark, logo, legend, or other notices
of ownership from any originals or copies of Confidential Information it obtains from
the Disclosing Party or from any copies the Disclosing Party is authorized to make.
9.5 Neither party shall disclose, advertise, or publish either the existence, the subject
matter, any discussions relating to, or any of the terms and conditions, of these
Terms of Sale (or any summary of any of the forgoing) to any third party without the
prior written consent of the other party. Any press release, publication,
advertisement or public disclosure regarding these Terms of Sale is subject to both
the prior review and the written approval of both parties.
10.0 PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT INDEMNIFICATION
10.1 Claims. STUDIO SOS will defend any claim against Customer that a STUDIO SOS-Branded
Product provided under this Agreement infringes third party patents, copyrights or
registered trademarks (the “Claim”) and will indemnify Customer against the final
judgment entered by a court of competent jurisdiction or any settlements arising out
of a Claim.
10.2 Customer shall:
(a) promptly notify STUDIO SOS in writing of the Claim (or threat thereof), and any
subsequent litigation updates; and
(b) cooperate with STUDIO SOS in the defense of the Claim (including any statements to
third parties regarding the Claim), and grant STUDIO SOS full and exclusive control
of the defense and settlement of the Claim and any subsequent appeal.
If Customer fails to notify STUDIO SOS promptly of the Claim, and that failure prejudices
STUDIO SOS’s ability to defend, settle or respond to the Claim, then STUDIO SOS’s obligation to
defend or indemnify Customer with respect to that Claim will be reduced to the
extent STUDIO SOS has been prejudiced. In addition, such failure to provide prompt
notification shall relieve STUDIO SOS of any obligation to reimburse for Customer
attorneys’ fees incurred prior to notification.
10.3 Additional Remedies. If a Claim is made or appears likely, Customer agrees to
permit STUDIO SOS to procure for Customer the right to continue using the STUDIO SOS-Branded
Product, or to replace or modify the STUDIO SOS-Branded Product with one that is at least
functionally equivalent. If STUDIO SOS determines that none of those alternatives is
reasonably available, then Customer will return the STUDIO SOS-Branded Product and
STUDIO SOS will refund Customer’s remaining net book value of the STUDIO SOS-Branded
Product calculated according to generally accepted accounting principles.
10.4 Exclusions. STUDIO SOS has no obligation for any Claim based on:
(a) compliance with any designs, specifications, requirements or instructions
provided by Customer or a third party on Customer’s behalf;
(b) modification of a STUDIO SOS-Branded Product by Customer or a third party;
(c) the amount or duration of use made of the STUDIO SOS-Branded Product, revenue
earned by Customer or services offered by Customer to external or internal
customers; or
(d) combination, operation or use of a STUDIO SOS-Branded Product with non-STUDIO SOS
products, software or business processes.
10.5 Sole and Exclusive Remedy. This Section 10.0 (Patent, Copyright and Trademark
Infringement Indemnification) states STUDIO SOS’s entire obligation and Customer’s
exclusive remedy regarding any claims for intellectual property infringement.
11.0 TERM AND TERMINATION
11.1 These Terms of Sale shall commence on the Effective Date and continue thereafter
for a period of one year, unless sooner terminated, as set forth below. These
Terms of Sale shall be automatically renewed thereafter, for successive one (1)
year periods, unless at least forty-five (45) days prior to the date of any such
renewal, either party shall have given written notice to the other of its intention that
these Terms of Sale not be renewed. These Terms of Sale shall automatically
terminate at the end of the annual period during which such notice is given.
11.2 Either party may terminate these Terms of Sale at any time by providing the other
party with at least forty-five (45) days’ prior written notice of termination.
11.3 A party may terminate these Terms of Sale immediately by written notice if (i) the
other party ceases or threatens to cease to carry on business as a going concern;
or (ii) the other party becomes or is reasonably likely to become subject to voluntary
or involuntary proceedings in bankruptcy or liquidation; or (iii) a receiver or similar
officer is appointed with respect to the whole or a substantial part of the other
party’s assets; or (iv) an event similar to any of the foregoing occurs under any
applicable law.
11.4 If a party breaches any of the provisions of these Terms of Sale, the non-breaching
party may terminate these Terms of Sale as follows: (a) immediately upon providing
written notice to the breaching party if the breach is not capable of being cured, and
(b) thirty (30) days after providing written notice to the breaching party if the
breaching party fails to cure such breach within such thirty (30) day period.
11.5 STUDIO SOS may terminate these Terms of Sale upon twenty (20) days’ written notice in
the event it becomes known that (i) Customer or an Affiliate or Customer’s direct or
indirect parent has acquired or intends to acquire a controlling interest in a third
party, or (ii) Customer or its direct or indirect parent is to be acquired by a third
party, or (iii) a controlling interest in Customer or its direct or indirect parent is to be
transferred to a third party.
11.6 STUDIO SOS may terminate these Terms of Sale immediately upon written notice in the
event that Customer is in breach of Sections 7.0 (Proprietary Rights and Software
Licensing), Section 9.0 (Confidential Information), or Section 14.0 (Export, ReExport,
Transfer & Use Controls), or Section 15.0 (Compliance with Laws, Including
Anti-Corruption Laws).
11.7 Upon termination or expiration of these Terms of Sale, (a) STUDIO SOS reserves the right
to cease all further delivery of Product or Services, (b) all outstanding invoices
immediately become due and payable by certified or cashier’s check, and (c) all
rights and licenses of Customer under these Terms of Sale shall terminate, subject
to the terms of the last sentence of this paragraph. If STUDIO SOS agrees to complete
delivery of any further Products or Services due against any existing Purchase
Orders then Customer shall pay for such Products or Services in advance by
certified or cashier’s check. Except for a termination of these Terms of Sale
resulting from Customer’s breach of Section 7.0 (Proprietary Rights and Software
Licensing), Section 9.0 (Confidential Information), or Section 14.0 (Export, ReExport,
Transfer & Use Controls), upon termination or expiration of these Terms of
Sale, Customer may continue to use, in accordance with these Terms of Sale,
Products provided to it by STUDIO SOS prior to the date of termination or expiration.
11.8 Upon termination or expiration of these Terms of Sale, Customer shall immediately
return to STUDIO SOS all Confidential Information (including all copies thereof) then in
Customer’s possession, custody or control; provided, that except for a termination
resulting from Customer’s breach of Section 7.0 (Proprietary Rights and Software
Licensing), or Section 14.0 (Export, Re-Export, Transfer & Use Controls), Customer
may retain a sufficient amount of such Confidential Information and material to
operate its installed base of Products.
11.9 In the event of termination of these Terms of Sale for any reason, Customer shall
have no rights to damages or indemnification of any nature related to such
termination (but not limiting any claim for damages it might have on account of
STUDIO SOS’s breach of these Terms of Sale, even if the breach gave rise to termination,
such liability being governed by and subject to the limitations set forth elsewhere in
these Terms of Sale), specifically including no rights to damages or indemnification
for commercial severance pay, whether by way of loss of future revenues or profits,
expenditures for promotion of the STUDIO SOS products, or other commitments in
connection with the business and good will of Customer or indemnities for any
termination of a business relationship.
11.10 In the event that, following the expiration or termination of these Terms of Sale,
Customer places Purchase Orders and STUDIO SOS accepts such Purchase Orders, then
any such Purchase Orders shall be governed by these Terms of Sale
notwithstanding the earlier expiration or termination of these Terms of Sale;
provided, however, that acceptance by STUDIO SOS of any such Purchase Order will not
be considered to be an extension of the term of these Terms of Sale nor a renewal
thereof.
11.11 Subject to Section 11.7, expiry or termination of these Terms of Sale shall not affect
or prejudice any rights accruing to either party hereunder.
12.0 SERVICES
Customer may place Purchase Orders for the various Services offered by STUDIO SOS. Such
Services, if accepted by STUDIO SOS, shall be subject to these Terms of Sale, as well as the
additional terms and conditions set forth in STUDIO SOS’s then-current applicable Service
descriptions that describe the deliverables and other terms applicable to such Services
unless an Existing Agreement is in effect in which case the terms of the Existing Agreement
shall govern any such Services. STUDIO SOS reserves the right to subcontract Services to
a third party maintenance organization to provide Services to Customer.
13.0 RECORDS
13.1 Customer shall keep full, true, and accurate records and accounts, in accordance
with generally-accepted accounting principles, of each Product, Service and
Software license purchased, resold, and/or deployed, including information
regarding Software usage and export or transfer. Customer shall make such
records available for review by or on behalf of STUDIO SOS upon fifteen (15) days’ prior
written notice, during regular business hours, at Customer’s principal place of
business and shall provide STUDIO SOS with reasonable assistance in order to review and
secure copies of such records. In the event such review discloses non-compliance
with these Terms of Sale, Customer shall promptly pay to STUDIO SOS the appropriate
license fees, plus the reasonable cost of conducting the review.
13.2 Inventory Review. From time-to-time STUDIO SOS may perform an inventory review of
Customer’s installed base of Products and review serial numbers and other records
(upon reasonable advance notice) to validate Service entitlement. STUDIO SOS will charge a Service fee if it finds that Services are being provided beyond that for
which Customer has paid STUDIO SOS. This Service fee includes amounts which should
have been paid, interest, attorneys’ fees, if any, and audit fees. STUDIO SOS requires that
Customer take all necessary action (for example, disabling passwords) to ensure
that any former employees or contractors do not access or use the Services.
14.0 EXPORT, RE-EXPORT, TRANSFER & USE CONTROLS
STUDIO SOS products, technology and Services are subject to U.S. and local export control laws
and regulations. Customer shall comply with such laws and regulations governing use,
export, re-export, and transfer of products, technology and services and will obtain all
required U.S. and local authorizations, permits or licenses. Customer certifies that they are
not on the U.S. Department of Commerce’s Denied Persons List or affiliated lists, on the
U.S. Department of Treasury’s Specially Designated Nationals List or on any U.S.
Government export exclusion lists. The export obligations under this clause shall survive
the expiration or termination of this Agreement.
15.0 COMPLIANCE WITH LAWS, INCLUDING ANTI-CORRUPTION LAWS
15.1 STUDIO SOS Systems expects and requires that all of its suppliers, subcontractors,
channel partners, consultants, agents and other parties with whom STUDIO SOS does
business (“STUDIO SOS Partners”), act at all times in a professional and ethical manner in
carrying out their services and contractual obligations to STUDIO SOS, or on STUDIO SOS’s behalf
to a STUDIO SOS customer or other third party. To that end, all STUDIO SOS Partners shall:
(a) Comply with all country, federal, state and local laws, ordinances, codes,
regulations, rules, policies and procedures, including, but not limited to, anticorruption
laws, such as the U.S. Foreign Corrupt Practices Act (“Applicable
Laws”);
(b) Not take any action or permit the taking of any action by a supplier or third
party which may render STUDIO SOS liable for a violation of Applicable Laws,
including the FCPA;
(c) Not use any money or other consideration paid by STUDIO SOS for any unlawful
purposes, including any purposes violating the FCPA or other Applicable
Laws, such as direct or indirect payments, for the purpose of assisting STUDIO SOS in
obtaining or retaining business, to any of the following:
(i) Government officials (including any person holding an executive,
legislative, judicial or administrative office, whether elected or
appointed, or of any public international organization, such as the
United Nations or World Bank, or any person acting in any official
capacity for or on behalf of such government, public enterprise or stateowned
business);
(ii) Political parties or party officials;
(iii) Candidates for political office; or
(iv) Any person, while knowing that all or a portion of such money or thing
of value will be offered, given or promised, directly or indirectly, to any
of the above-identified persons or organizations.
(d) Upon request, STUDIO SOS’s Partners may be required to have their own
subcontractors, consultants, agents or representatives execute a similar
written anti-corruption compliance statement, and to confirm to STUDIO SOS that such
action has been taken laws;
(e) The record-keeping, audit and other related terms and obligations, as set forth
in Partners’ agreement(s) with STUDIO SOS, shall equally apply to their compliance
with this policy;
(f) In no event shall STUDIO SOS be obligated under any supplier or third party
agreement to take any action or omit to take any action that STUDIO SOS believes, in
good faith, would cause it to be in violation of the FCPA or other Applicable
Laws;
(g) STUDIO SOS retains the right to suspend or terminate any STUDIO SOS Partner agreement
immediately upon written notice if STUDIO SOS believes, in good faith, that such
STUDIO SOS Partner has breached any elements of this policy, or if the Partner
makes a false or fraudulent statement, representation or warranty while
carrying out their contractual obligations;
(h) STUDIO SOS’s Partners shall immediately report to STUDIO SOS any concerns it may
have regarding any business practices by any STUDIO SOS employee or STUDIO SOS
Partner.
(i) Customer has read and agrees to act consistently with STUDIO SOS’s Policy.
(j) Customer shall use its best efforts to regularly inform STUDIO SOS of any
requirements under any Applicable Laws that directly or indirectly affect these
Terms of Sale, the sale, use and distribution of Products or Services, or
STUDIO SOS’s trade name, trademarks or other commercial, industrial or intellectual
property interests, including, but not limited to, certification or type approval of
the Products from the proper authorities in the Territory;
(k) Additionally, Customer shall comply, and notify end users of their obligations
to comply, with all applicable STUDIO SOS published policies, including Software
Transfer Policy, Used Equipment Policy, as published by STUDIO SOS and as
amended from time to time. Customer shall promptly notify STUDIO SOS of any
failure by any end user to comply with any of the foregoing policies that comes
to Customer’s attention.
16.0 LIMITATION AND EXCLUSION OF LIABILITY
16.1 Nothing in these Terms of Sale limits or excludes the liability of:
(a) Either party to the other for:
(i) personal injury or death resulting directly from the negligence of
the other party;
(ii) fraud or fraudulent misrepresentation;
(iii) a breach of Section 9.0 (Confidential Information); or
(iv) any liability that cannot be limited or excluded under applicable
law.
(b) Customer to STUDIO SOS arising out of:
(i) Customer’s breach of Section 7.0 (Proprietary Rights and
Software Licensing);
(ii) Customer’s breach of the End User License Agreement in
Exhibit A (EULA); or
(iii) any amounts due to STUDIO SOS under these Terms of Sale.
16.2 Subject to Section 16.1 above and Section 16.3 below, each party’s total aggregate
liability is limited to the money paid to STUDIO SOS under these Terms of Sale during the
twelve (12) month period prior to the event that first gave rise to such liability.
16.3 Subject to Section 16.1 above, and notwithstanding anything else in these Terms of
Sale to the contrary, neither party will be liable for any:
(a) special, incidental, indirect or consequential damages;
(b) loss of any of the following: profits, revenue, business, anticipated
savings, use of any product or service, opportunity, goodwill or
reputation;
(c) lost or damaged data; or
(d) wasted expenditure (other than any expenditure necessarily incurred
to discharge the innocent party’s duty or to mitigate its losses).
16.4 References in this Section 16.0 to (a) a “party” includes a party’s affiliates, officers,
directors, employees, agents and suppliers and (b) “liability” includes liability
arising from contract, tort (including negligence), under any indemnity, strict liability
or otherwise, in each case even if a party has been informed of the possibility of
that liability. In Section 16.3, references to “loss” refers to any and all kinds of loss
or damage including, without limitation, any damages, fines, costs, charges, fees or
other liability.
17.0 GENERAL
17.1 Choice of Law. The validity, interpretation, and performance of these Terms of
Sale shall be controlled by and construed under the laws of England, as if
performed wholly within England and without giving effect to the principles of
conflicts of law, and the English courts shall have exclusive jurisdiction over any
claim arising thereunder. The parties specifically disclaim the application of the UN
Convention on Contracts for the International Sale of Goods. Notwithstanding the
foregoing, either party may seek interim injunctive relief in any court of appropriate
jurisdiction with respect to any alleged breach of such party’s intellectual property or
proprietary rights.
17.2 Force Majeure. Except for the obligation to pay monies due and owing, neither
party shall be liable for any delay or failure in performance due to events outside
the defaulting party’s reasonable control, including, without limitation, acts of God,
earthquakes, labor disputes, industry-wide shortages of supplies, actions of
governmental entities, riots, war, terrorism, fire, epidemics, or delays of common
carriers or other circumstances beyond its reasonable control. The obligations and
rights of the defaulting party shall be extended for a period equal to the period
during which such event prevented such party’s performance.
17.3 No Waiver. The waiver by either party of any right provided under these Terms of
Sale shall not constitute a subsequent or continuing waiver of such right or of any
other right under these Terms of Sale.
17.4 Assignment. Neither these Terms of Sale nor any rights or obligations under these
Terms of Sale shall be assigned by a party without the other’s prior written consent,
which will not be unreasonably withheld or delayed. Any attempted assignment
shall be void and of no effect. Notwithstanding the foregoing, the parties may
assign these Terms of Sale and any right or obligation under it without the other’s
approval, to any Affiliate. Notwithstanding any assignment by Customer, Customer
shall remain liable for the payment of all amounts due under these Terms of Sale.
17.5 Severability. In the event that part of or one or more terms of these Terms of Sale
become or are declared to be illegal or otherwise unenforceable by any court of
competent jurisdiction, each such part or term shall be null and void and shall be
deemed deleted from these Terms of Sale. All remaining terms of these Terms of
Sale shall remain in full force and effect. Notwithstanding the foregoing, if this
paragraph is invoked and, as a result, the value of these Terms of Sale is materially
impaired for either party, as determined by such party in its sole discretion, then the
affected party may terminate these Terms of Sale by written notice with immediate
effect to the other.
17.6 No Agency. These Terms of Sale do not create any agency, partnership, joint
venture, or franchise relationship. No employee of either party shall be or become,
or shall be deemed to be or become, an employee of the other party by virtue of the
existence or implementation of these Terms of Sale. Each party hereto is an
independent contractor. Neither party shall assume or create any obligation of any
nature whatsoever on behalf of the other party or bind the other party in any
respect whatsoever.
17.7 Entire Agreement. These Terms of Sale constitute the entire agreement between
the parties concerning the subject matter of these Terms of Sale and replace any
prior oral or written communications between the parties, all of which are excluded.
There are no conditions, understandings, agreements, representations or
warranties, expressed or implied, that are not specified herein (except where
implied by law and exclusion is prohibited). These Terms of Sale may be modified
only by a written document executed by the parties hereto.
17.8 Future Products and Services. For any Products and Services included in the Price
List, including Products and Services which become or have become STUDIO SOS
Products or Services as a result of an acquisition by STUDIO SOS of another entity, STUDIO SOS
may stipulate certification, installation, or training requirements for Customer prior
to allowing Customer (if Customer is a certified STUDIO SOS reseller) to purchase such
Products and Services for resale, and may require on-going fulfillment of some or
all of the requirements to retain the right to purchase, license, resell or support such
Products and Services. STUDIO SOS reserves the right, during the term of these Terms of
Sale, to license and distribute additional items of Software. Such items of Software
may be licensed under additional or different license terms which will be made
available to Customer at the time such items of Software are ordered by or
provided to Customer.
17.9 Notices. All notices required or permitted under these Terms of Sale will be in
writing and will be deemed given one (1) day after deposit with a commercial
express courier specifying next day delivery (or two (2) days for international
courier packages specifying 2-day delivery), with written verification of receipt. All
communications will be sent to the addresses set forth on the first page of these
Terms of Sale, (and notices to STUDIO SOS shall be further addressed to the Office of the
General Counsel, Attn: Contract Notice) or such other address as may be
designated by a party by giving written notice to the other party pursuant to this
paragraph, or, in the absence of such an address from Customer, to the address to
which the last invoice under these Terms of Sale was sent before notice is served.
Notwithstanding the foregoing, notices regarding changes in pricing, Software
license terms, policies or programs may be by posting on STUDIO SOS.biz or by e-mail or
fax.
17.10 Third Party Rights. No person who is not a party to these Terms of Sale shall be
entitled to enforce or take the benefit of any of its terms under the Contracts (Rights
of Third Parties) Act 1999.
17.11 Survival. The following sections shall survive the expiration or earlier termination of
these Terms of Sale: Sections 2.0 (Scope), 6.0 (Payment), 7.0, (Proprietary Rights
and Software Licensing), 8.0 (Limited Warranty), 9.0 (Confidential Information),
10.0 (Patent, Copyright and Trademark Infringement Indemnification), 11.0 (Term
and Termination), 13.0 (Records), 14.0 (Export, Re-Export, Transfer and Use
Controls), 16.0 (Limitation and Exclusion of Liability), 17.0 (General), and the
license to use the Software set out in Exhibit A (End User License Agreement)
(subject to the termination provisions set forth in Section 11.0 (Term and
Termination) of these Terms of Sale).
17.12 Headings. Headings of sections have been added solely for convenience of
reference and shall not be deemed part of these Terms of Sale.
17.13 Costs. Except where expressly stated otherwise, each party shall bear all costs
and expenses incurred by it under or in connection with these Terms of Sale.
EXHIBIT A
END USER LICENSE AGREEMENT
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. IT IS
VERY IMPORTANT THAT YOU CHECK THAT YOU ARE PURCHASING STUDIO SOS SOFTWARE OR
EQUIPMENT FROM AN APPROVED SOURCE AND THAT YOU, OR THE ENTITY YOU
REPRESENT (COLLECTIVELY, THE “CUSTOMER”) HAVE BEEN REGISTERED AS THE END
USER FOR THE PURPOSES OF THIS STUDIO SOS END USER LICENSE AGREEMENT. IF YOU ARE
NOT REGISTERED AS THE END USER, YOU HAVE NO LICENSE TO USE THE SOFTWARE
AND THE LIMITED WARRANTY IN THIS END USER LICENSE AGREEMENT DOES NOT APPLY.
ASSUMING YOU HAVE PURCHASED FROM AN APPROVED SOURCE, DOWNLOADING,
INSTALLING OR USING STUDIO SOS OR STUDIO SOS-SUPPLIED SOFTWARE CONSTITUTES
ACCEPTANCE OF THIS AGREEMENT.
STUDIO SOS SYSTEMS, INC. OR ITS AFFILIATE LICENSING THE SOFTWARE (“STUDIO SOS”) IS WILLING
TO LICENSE THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU PURCHASED
THE SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU ACCEPT ALL OF THE
TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT PLUS ANY ADDITIONAL
LIMITATIONS ON THE LICENSE SET FORTH IN A SUPPLEMENTAL LICENSE AGREEMENT
ACCOMPANYING THE PRODUCT OR AVAILABLE AT THE TIME OF YOUR ORDER
(COLLECTIVELY, THE “AGREEMENT”). TO THE EXTENT OF ANY CONFLICT BETWEEN THE
TERMS OF THIS END USER LICENSE AGREEMENT AND ANY SUPPLEMENTAL LICENSE
AGREEMENT, THE SUPPLEMENTAL LICENSE AGREEMENT SHALL APPLY. BY
DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE REPRESENTING THAT
YOU PURCHASED THE SOFTWARE FROM AN APPROVED SOURCE AND BINDING YOURSELF
TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT,
THEN STUDIO SOS IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND (A) YOU MAY NOT
DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE
(INCLUDING ANY UNOPENED CD PACKAGE AND ANY WRITTEN MATERIALS) FOR A FULL
REFUND, OR, IF THE SOFTWARE AND WRITTEN MATERIALS ARE SUPPLIED AS PART OF
ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND.
YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM AN
APPROVED SOURCE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL AND REGISTERED
END USER PURCHASER. FOR THE PURPOSES OF THIS END USER LICENSE AGREEMENT,
AN “APPROVED SOURCE” MEANS (A) STUDIO SOS; OR (B) A DISTRIBUTOR OR SYSTEMS
INTEGRATOR AUTHORIZED BY STUDIO SOS TO DISTRIBUTE/SELL STUDIO SOS EQUIPMENT,
SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS; OR (C) A RESELLER
AUTHORIZED BY ANY SUCH DISTRIBUTOR OR SYSTEMS INTEGRATOR IN ACCORDANCE
WITH THE TERMS OF THE DISTRIBUTOR’S AGREEMENT WITH STUDIO SOS TO DISTRIBUTE/SELL
THE STUDIO SOS EQUIPMENT SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END
USERS.
THE FOLLOWING TERMS OF THE AGREEMENT GOVERN CUSTOMER’S USE OF THE
SOFTWARE (DEFINED BELOW), EXCEPT TO THE EXTENT: (A) THERE IS A SEPARATE
SIGNED CONTRACT BETWEEN CUSTOMER AND STUDIO SOS GOVERNING CUSTOMER’S USE OF
THE SOFTWARE, OR (B) THE SOFTWARE INCLUDES A SEPARATE “CLICK-ACCEPT”
LICENSE AGREEMENT OR THIRD PARTY LICENSE AGREEMENT AS PART OF THE
INSTALLATION OR DOWNLOAD PROCESS GOVERNING CUSTOMER’S USE OF THE
SOFTWARE. TO THE EXTENT OF A CONFLICT BETWEEN THE PROVISIONS OF THE
FOREGOING DOCUMENTS, THE ORDER OF PRECEDENCE SHALL BE (1) THE SIGNED
CONTRACT, (2) THE CLICK-ACCEPT AGREEMENT OR THIRD PARTY LICENSE AGREEMENT,
AND (3) THE AGREEMENT. FOR PURPOSES OF THE AGREEMENT, “SOFTWARE” SHALL
MEAN COMPUTER PROGRAMS, INCLUDING FIRMWARE AND COMPUTER PROGRAMS
EMBEDDED IN STUDIO SOS EQUIPMENT, AS PROVIDED TO CUSTOMER BY AN APPROVED
SOURCE, AND ANY UPGRADES, UPDATES, BUG FIXES OR MODIFIED VERSIONS THERETO
(COLLECTIVELY, “UPGRADES”), ANY OF THE SAME WHICH HAS BEEN RELICENSED UNDER THE STUDIO SOS SOFTWARE TRANSFER AND RE-LICENSING POLICY (AS MAY BE AMENDED BY STUDIO SOS FROM TIME TO TIME) OR BACKUP COPIES OF ANY OF THE FOREGOING.
LICENSE. CONDITIONED UPON COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, STUDIO SOS
GRANTS TO CUSTOMER A NONEXCLUSIVE AND NONTRANSFERABLE LICENSE TO USE FOR CUSTOMER’S
INTERNAL BUSINESS PURPOSES THE SOFTWARE AND THE DOCUMENTATION FOR WHICH CUSTOMER HAS
PAID THE REQUIRED LICENSE FEES TO AN APPROVED SOURCE. “DOCUMENTATION” MEANS WRITTEN
INFORMATION (WHETHER CONTAINED IN USER OR TECHNICAL MANUALS, TRAINING MATERIALS,
SPECIFICATIONS OR OTHERWISE) PERTAINING TO THE SOFTWARE AND MADE AVAILABLE BY AN APPROVED
SOURCE WITH THE SOFTWARE IN ANY MANNER (INCLUDING ON CD-ROM, OR ON-LINE). IN ORDER TO USE
THE SOFTWARE, CUSTOMER MAY BE REQUIRED TO INPUT A REGISTRATION NUMBER OR PRODUCT
AUTHORIZATION KEY AND REGISTER CUSTOMER’S COPY OF THE SOFTWARE ON-LINE AT STUDIO SOS’S WEB-SITE
TO OBTAIN THE NECESSARY LICENSE KEY OR LICENSE FILE.
CUSTOMER’S LICENSE TO USE THE SOFTWARE SHALL BE LIMITED TO, AND CUSTOMER SHALL NOT USE THE
SOFTWARE IN EXCESS OF, A SINGLE HARDWARE CHASSIS OR CARD OR SUCH OTHER LIMITATIONS AS ARE
SET FORTH IN THE APPLICABLE SUPPLEMENTAL LICENSE AGREEMENT OR IN THE APPLICABLE PURCHASE
ORDER WHICH HAS BEEN ACCEPTED BY AN APPROVED SOURCE AND FOR WHICH CUSTOMER HAS PAID TO AN
APPROVED SOURCE THE REQUIRED LICENSE FEE (THE “PURCHASE ORDER”).
UNLESS OTHERWISE EXPRESSLY PROVIDED IN THE DOCUMENTATION OR ANY APPLICABLE SUPPLEMENTAL
LICENSE AGREEMENT, CUSTOMER SHALL USE THE SOFTWARE SOLELY AS EMBEDDED IN, FOR EXECUTION
ON, OR (WHERE THE APPLICABLE DOCUMENTATION PERMITS INSTALLATION ON NON-STUDIO SOS EQUIPMENT) FOR
COMMUNICATION WITH STUDIO SOS EQUIPMENT OWNED OR LEASED BY CUSTOMER AND USED FOR CUSTOMER’S
INTERNAL BUSINESS PURPOSES. NO OTHER LICENSES ARE GRANTED BY IMPLICATION, ESTOPPEL OR
OTHERWISE.
FOR EVALUATION OR BETA COPIES FOR WHICH STUDIO SOS DOES NOT CHARGE A LICENSE FEE, THE ABOVE
REQUIREMENT TO PAY LICENSE FEES DOES NOT APPLY.
GENERAL LIMITATIONS. THIS IS A LICENSE, NOT A TRANSFER OF TITLE, TO THE SOFTWARE AND
DOCUMENTATION, AND STUDIO SOS RETAINS OWNERSHIP OF ALL COPIES OF THE SOFTWARE AND
DOCUMENTATION. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND DOCUMENTATION CONTAIN
TRADE SECRETS OF STUDIO SOS, ITS SUPPLIERS OR LICENSORS, INCLUDING BUT NOT LIMITED TO THE SPECIFIC
INTERNAL DESIGN AND STRUCTURE OF INDIVIDUAL PROGRAMS AND ASSOCIATED INTERFACE INFORMATION.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED UNDER THE AGREEMENT, CUSTOMER SHALL ONLY USE THE
SOFTWARE IN CONNECTION WITH THE USE OF STUDIO SOS EQUIPMENT PURCHASED BY THE CUSTOMER FROM AN
APPROVED SOURCE AND CUSTOMER SHALL HAVE NO RIGHT, AND CUSTOMER SPECIFICALLY AGREES NOT
TO:
TRANSFER, ASSIGN OR SUBLICENSE ITS LICENSE RIGHTS TO ANY OTHER PERSON OR ENTITY (OTHER THAN IN
COMPLIANCE WITH ANY STUDIO SOS RELICENSING/TRANSFER POLICY THEN IN FORCE), OR USE THE SOFTWARE ON
STUDIO SOS EQUIPMENT NOT PURCHASED BY THE CUSTOMER FROM AN APPROVED SOURCE OR ON SECONDHAND
STUDIO SOS EQUIPMENT, AND CUSTOMER ACKNOWLEDGES THAT ANY ATTEMPTED TRANSFER, ASSIGNMENT,
SUBLICENSE OR USE SHALL BE VOID;
MAKE ERROR CORRECTIONS TO OR OTHERWISE MODIFY OR ADAPT THE SOFTWARE OR CREATE DERIVATIVE
WORKS BASED UPON THE SOFTWARE, OR PERMIT THIRD PARTIES TO DO THE SAME;
REVERSE ENGINEER OR DECOMPILE, DECRYPT, DISASSEMBLE OR OTHERWISE REDUCE THE SOFTWARE TO
HUMAN-READABLE FORM, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PERMITTED UNDER APPLICABLE
LAW NOTWITHSTANDING THIS RESTRICTION OR EXCEPT TO THE EXTENT THAT STUDIO SOS IS LEGALLY REQUIRED
TO PERMIT SUCH SPECIFIC ACTIVITY PURSUANT TO ANY APPLICABLE OPEN SOURCE LICENSE;
PUBLISH ANY RESULTS OF BENCHMARK TESTS RUN ON THE SOFTWARE;
USE OR PERMIT THE SOFTWARE TO BE USED TO PERFORM SERVICES FOR THIRD PARTIES, WHETHER ON A
SERVICE BUREAU OR TIME SHARING BASIS OR OTHERWISE, WITHOUT THE EXPRESS WRITTEN
AUTHORIZATION OF STUDIO SOS; OR
DISCLOSE, PROVIDE, OR OTHERWISE MAKE AVAILABLE TRADE SECRETS CONTAINED WITHIN THE SOFTWARE
AND DOCUMENTATION IN ANY FORM TO ANY THIRD PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF
STUDIO SOS. CUSTOMER SHALL IMPLEMENT REASONABLE SECURITY MEASURES TO PROTECT SUCH TRADE
SECRETS.
TO THE EXTENT REQUIRED BY LAW, AND AT CUSTOMER’S WRITTEN REQUEST, STUDIO SOS SHALL PROVIDE
CUSTOMER WITH THE INTERFACE INFORMATION NEEDED TO ACHIEVE INTEROPERABILITY BETWEEN THE
SOFTWARE AND ANOTHER INDEPENDENTLY CREATED PROGRAM, ON PAYMENT OF STUDIO SOS’S APPLICABLE FEE,
IF ANY. CUSTOMER SHALL OBSERVE STRICT OBLIGATIONS OF CONFIDENTIALITY WITH RESPECT TO SUCH
INFORMATION AND SHALL USE SUCH INFORMATION IN COMPLIANCE WITH ANY APPLICABLE TERMS AND
CONDITIONS UPON WHICH STUDIO SOS MAKES SUCH INFORMATION AVAILABLE.
SOFTWARE, UPGRADES AND ADDITIONAL COPIES. NOTWITHSTANDING ANY OTHER PROVISION OF
THE AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY
ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF MAKING OR
ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE
ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE TO AN APPROVED SOURCE
FOR THE UPGRADE OR ADDITIONAL COPIES; (2) USE OF UPGRADES IS LIMITED TO STUDIO SOS
EQUIPMENT SUPPLIED BY AN APPROVED SOURCE FOR WHICH CUSTOMER IS THE
ORIGINAL END USER PURCHASER OR LESSEE OR OTHERWISE HOLDS A VALID LICENSE
TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF
ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
PROPRIETARY NOTICES. CUSTOMER AGREES TO MAINTAIN AND REPRODUCE ALL COPYRIGHT,
PROPRIETARY AND OTHER NOTICES ON ALL COPIES, IN ANY FORM, OF THE SOFTWARE IN THE SAME FORM
AND MANNER THAT SUCH COPYRIGHT AND OTHER PROPRIETARY NOTICES ARE INCLUDED ON THE
SOFTWARE. EXCEPT AS EXPRESSLY AUTHORIZED IN THE AGREEMENT, CUSTOMER SHALL NOT MAKE ANY
COPIES OR DUPLICATES OF ANY SOFTWARE WITHOUT THE PRIOR WRITTEN PERMISSION OF STUDIO SOS.
TERM AND TERMINATION. THE AGREEMENT AND THE LICENSE GRANTED HEREIN SHALL REMAIN EFFECTIVE
UNTIL TERMINATED. CUSTOMER MAY TERMINATE THE AGREEMENT AND THE LICENSE AT ANY TIME BY
DESTROYING ALL COPIES OF SOFTWARE AND ANY DOCUMENTATION. CUSTOMER’S RIGHTS UNDER THE
AGREEMENT WILL TERMINATE IMMEDIATELY WITHOUT NOTICE FROM STUDIO SOS IF CUSTOMER FAILS TO COMPLY
WITH ANY PROVISION OF THE AGREEMENT. UPON TERMINATION, CUSTOMER SHALL DESTROY ALL COPIES
OF SOFTWARE AND DOCUMENTATION IN ITS POSSESSION OR CONTROL. ALL CONFIDENTIALITY OBLIGATIONS
OF CUSTOMER, ALL RESTRICTIONS AND LIMITATIONS IMPOSED ON THE CUSTOMER UNDER THE SECTION
TITLED “GENERAL LIMITATIONS” AND ALL LIMITATIONS OF LIABILITY AND DISCLAIMERS AND RESTRICTIONS OF
WARRANTY SHALL SURVIVE TERMINATION OF THIS AGREEMENT. IN ADDITION, THE PROVISIONS OF THE
SECTIONS TITLED “U.S. GOVERNMENT END USER PURCHASERS” AND “GENERAL TERMS APPLICABLE TO
THE LIMITED WARRANTY STATEMENT AND END USER LICENSE AGREEMENT” SHALL SURVIVE TERMINATION
OF THE AGREEMENT.
CUSTOMER RECORDS. CUSTOMER GRANTS TO STUDIO SOS AND ITS INDEPENDENT ACCOUNTANTS THE RIGHT TO
EXAMINE CUSTOMER’S BOOKS, RECORDS AND ACCOUNTS DURING CUSTOMER’S NORMAL BUSINESS HOURS
TO VERIFY COMPLIANCE WITH THIS AGREEMENT. IN THE EVENT SUCH AUDIT DISCLOSES NON-COMPLIANCE
WITH THIS AGREEMENT, CUSTOMER SHALL PROMPTLY PAY TO STUDIO SOS THE APPROPRIATE LICENSE FEES,
PLUS THE REASONABLE COST OF CONDUCTING THE AUDIT.
EXPORT, RE-EXPORT, TRANSFER & USE CONTROLS. THE SOFTWARE, DOCUMENTATION AND
TECHNOLOGY OR DIRECT PRODUCTS THEREOF (HEREAFTER REFERRED TO AS SOFTWARE AND
TECHNOLOGY), SUPPLIED BY STUDIO SOS UNDER THE AGREEMENT ARE SUBJECT TO EXPORT CONTROLS UNDER
THE LAWS AND REGULATIONS OF THE UNITED STATES (U.S.) AND ANY OTHER APPLICABLE COUNTRIES’
LAWS AND REGULATIONS. CUSTOMER SHALL COMPLY WITH SUCH LAWS AND REGULATIONS GOVERNING EXPORT, RE-EXPORT, TRANSFER AND USE OF STUDIO SOS SOFTWARE AND TECHNOLOGY AND WILL OBTAIN ALL
REQUIRED U.S. AND LOCAL AUTHORIZATIONS, PERMITS, OR LICENSES. STUDIO SOS AND CUSTOMER EACH AGREE
TO PROVIDE THE OTHER INFORMATION, SUPPORT DOCUMENTS, AND ASSISTANCE AS MAY REASONABLY BE
REQUIRED BY THE OTHER IN CONNECTION WITH SECURING AUTHORIZATIONS OR LICENSES. INFORMATION
U.S. GOVERNMENT END USER PURCHASERS. THE SOFTWARE AND DOCUMENTATION QUALIFY AS
“COMMERCIAL ITEMS,” AS THAT TERM IS DEFINED AT FEDERAL ACQUISITION REGULATION (“FAR”) (48
C.F.R.) 2.101, CONSISTING OF “COMMERCIAL COMPUTER SOFTWARE” AND “COMMERCIAL COMPUTER
SOFTWARE DOCUMENTATION” AS SUCH TERMS ARE USED IN FAR 12.212. CONSISTENT WITH FAR 12.212
AND DOD FAR SUPP. 227.7202-1 THROUGH 227.7202-4, AND NOTWITHSTANDING ANY OTHER FAR OR
OTHER CONTRACTUAL CLAUSE TO THE CONTRARY IN ANY AGREEMENT INTO WHICH THE AGREEMENT MAY BE
INCORPORATED, CUSTOMER MAY PROVIDE TO GOVERNMENT END USER OR, IF THE AGREEMENT IS DIRECT,
GOVERNMENT END USER WILL ACQUIRE, THE SOFTWARE AND DOCUMENTATION WITH ONLY THOSE RIGHTS
SET FORTH IN THE AGREEMENT. USE OF EITHER THE SOFTWARE OR DOCUMENTATION OR BOTH
CONSTITUTES AGREEMENT BY THE GOVERNMENT THAT THE SOFTWARE AND DOCUMENTATION ARE
“COMMERCIAL COMPUTER SOFTWARE” AND “COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION,” AND
CONSTITUTES ACCEPTANCE OF THE RIGHTS AND RESTRICTIONS HEREIN.
IDENTIFIED COMPONENTS; ADDITIONAL TERMS. THE SOFTWARE MAY CONTAIN OR BE DELIVERED WITH ONE
OR MORE COMPONENTS, WHICH MAY INCLUDE THIRD-PARTY COMPONENTS, IDENTIFIED BY STUDIO SOS IN THE
DOCUMENTATION, README.TXT_FILE, THIRD-PARTY CLICK-ACCEPT OR ELSEWHERE (E.G. ON
WWW.STUDIO SOS.biz) (THE “IDENTIFIED COMPONENT(S)”) AS BEING SUBJECT TO DIFFERENT LICENSE
AGREEMENT TERMS, DISCLAIMERS OF WARRANTIES, LIMITED WARRANTIES OR OTHER TERMS AND
CONDITIONS (COLLECTIVELY, “ADDITIONAL TERMS”) THAN THOSE SET FORTH HEREIN. YOU AGREE TO THE
APPLICABLE ADDITIONAL TERMS FOR ANY SUCH IDENTIFIED COMPONENT(S).
LIMITED WARRANTY. SUBJECT TO THE LIMITATIONS AND CONDITIONS SET FORTH HEREIN, STUDIO SOS
WARRANTS THAT COMMENCING FROM THE DATE OF SHIPMENT TO CUSTOMER (BUT IN CASE OF RESALE BY
AN APPROVED SOURCE OTHER THAN STUDIO SOS, COMMENCING NOT MORE THAN NINETY (90) DAYS AFTER
ORIGINAL SHIPMENT BY STUDIO SOS), AND CONTINUING FOR A PERIOD OF THE LONGER OF (A) NINETY (90) DAYS
OR (B) THE WARRANTY PERIOD (IF ANY) EXPRESSLY SET FORTH AS APPLICABLE SPECIFICALLY TO SOFTWARE
IN THE WARRANTY CARD ACCOMPANYING THE PRODUCT OF WHICH THE SOFTWARE IS A PART (THE
“PRODUCT”) (IF ANY): (A) THE MEDIA ON WHICH THE SOFTWARE IS FURNISHED WILL BE FREE OF DEFECTS IN
MATERIALS AND WORKMANSHIP UNDER NORMAL USE; AND (B) THE SOFTWARE SUBSTANTIALLY CONFORMS
TO THE DOCUMENTATION. THE DATE OF SHIPMENT OF A PRODUCT BY STUDIO SOS IS SET FORTH ON THE
PACKAGING MATERIAL IN WHICH THE PRODUCT IS SHIPPED. EXCEPT FOR THE FOREGOING, THE SOFTWARE
IS PROVIDED “AS IS”. THIS LIMITED WARRANTY EXTENDS ONLY TO THE SOFTWARE PURCHASED FROM AN
APPROVED SOURCE BY A CUSTOMER WHO IS THE FIRST REGISTERED END USER. CUSTOMER’S SOLE AND
EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF STUDIO SOS AND ITS SUPPLIERS UNDER THIS LIMITED
WARRANTY WILL BE (I) REPLACEMENT OF DEFECTIVE MEDIA AND/OR (II) AT STUDIO SOS’S OPTION, REPAIR,
REPLACEMENT, OR REFUND OF THE PURCHASE PRICE OF THE SOFTWARE, IN BOTH CASES SUBJECT TO THE
CONDITION THAT ANY ERROR OR DEFECT CONSTITUTING A BREACH OF THIS LIMITED WARRANTY IS
REPORTED TO THE APPROVED SOURCE SUPPLYING THE SOFTWARE TO CUSTOMER WITHIN THE WARRANTY
PERIOD. STUDIO SOS OR THE APPROVED SOURCE SUPPLYING THE SOFTWARE TO CUSTOMER MAY, AT ITS
OPTION, REQUIRE RETURN OF THE SOFTWARE AND/OR DOCUMENTATION AS A CONDITION TO THE REMEDY.
IN NO EVENT DOES STUDIO SOS WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT CUSTOMER WILL BE
ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS. IN ADDITION, DUE TO THE
CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, STUDIO SOS
DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE
SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.
RESTRICTIONS. THIS WARRANTY DOES NOT APPLY IF THE SOFTWARE, PRODUCT OR ANY OTHER
EQUIPMENT UPON WHICH THE SOFTWARE IS AUTHORIZED TO BE USED (A) HAS BEEN ALTERED, EXCEPT BY STUDIO SOS OR ITS AUTHORIZED REPRESENTATIVE, (B) HAS NOT BEEN INSTALLED, OPERATED, REPAIRED, OR MAINTAINED IN ACCORDANCE WITH INSTRUCTIONS SUPPLIED BY STUDIO SOS, (C) HAS BEEN SUBJECTED TO ABNORMAL PHYSICAL OR ELECTRICAL STRESS, ABNORMAL ENVIRONMENTAL CONDITIONS, MISUSE,
NEGLIGENCE, OR ACCIDENT; OR (D) IS LICENSED FOR BETA, EVALUATION, TESTING OR DEMONSTRATION PURPOSES. THE SOFTWARE WARRANTY ALSO DOES NOT APPLY TO (E) ANY TEMPORARY SOFTWARE MODULES; (F) ANY SOFTWARE NOT POSTED ON STUDIO SOS’S SOFTWARE CENTER; (G) ANY SOFTWARE THAT STUDIO SOS EXPRESSLY PROVIDES ON AN “AS IS” BASIS ON STUDIO SOS’S SOFTWARE CENTER; (H) ANY SOFTWARE FOR WHICH AN APPROVED SOURCE DOES NOT RECEIVE A LICENSE FEE; AND (I) SOFTWARE SUPPLIED BY ANY THIRD PARTY WHICH IS NOT AN APPROVED SOURCE.
DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY,
NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A
COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO
THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY STUDIO SOS,
ITS SUPPLIERS AND LICENSORS. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE
EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED
IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN THE “LIMITED
WARRANTY” SECTION ABOVE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT
ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE
LIMITATION MAY NOT APPLY IN SUCH STATES. THIS WARRANTY GIVES CUSTOMER
SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY
FROM JURISDICTION TO JURISDICTION. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF
THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
DISCLAIMER OF LIABILITIES – LIMITATION OF LIABILITY. IF YOU ACQUIRED THE SOFTWARE IN THE
UNITED STATES, LATIN AMERICA, CANADA, JAPAN OR THE CARIBBEAN,
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, ALL
LIABILITY OF STUDIO SOS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SUPPLIERS AND LICENSORS COLLECTIVELY, TO CUSTOMER, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT
EXCEED THE PRICE PAID BY CUSTOMER TO ANY APPROVED SOURCE FOR THE
SOFTWARE THAT GAVE RISE TO THE CLAIM OR IF THE SOFTWARE IS PART OF ANOTHER
PRODUCT, THE PRICE PAID FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY
FOR SOFTWARE IS CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR
MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
IF YOU ACQUIRED THE SOFTWARE IN EUROPE, THE MIDDLE EAST, AFRICA, ASIA OR
OCEANIA, NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY,
ALL LIABILITY OF STUDIO SOS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SUPPLIERS AND LICENSORS COLLECTIVELY, TO CUSTOMER, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT
EXCEED THE PRICE PAID BY CUSTOMER TO STUDIO SOS FOR THE SOFTWARE THAT GAVE RISE
TO THE CLAIM OR IF THE SOFTWARE IS PART OF ANOTHER PRODUCT, THE PRICE PAID
FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS
CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL
NOT ENLARGE THIS LIMIT). NOTHING IN THE AGREEMENT SHALL LIMIT (I) THE LIABILITY
OF STUDIO SOS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS
AND LICENSORS TO CUSTOMER FOR PERSONAL INJURY OR DEATH CAUSED BY THEIR
NEGLIGENCE, (II) STUDIO SOS’S LIABILITY FOR FRAUDULENT MISREPRESENTATION, OR (III)
ANY LIABILITY OF STUDIO SOS WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
DISCLAIMER OF LIABILITIES – WAIVER OF CONSEQUENTIAL DAMAGES AND OTHER LOSSES. IF YOU
ACQUIRED THE SOFTWARE IN THE UNITED STATES, LATIN AMERICA, THE CARIBBEAN OR
CANADA, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL STUDIO SOS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE
THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE
SOFTWARE OR OTHERWISE AND EVEN IF STUDIO SOS OR ITS SUPPLIERS OR LICENSORS HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR
JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IF YOU ACQUIRED THE SOFTWARE IN JAPAN, EXCEPT FOR LIABILITY ARISING OUT OF OR
IN CONNECTION WITH DEATH OR PERSONAL INJURY, FRAUDULENT
MISREPRESENTATION, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN
FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL STUDIO SOS, ITS
AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS
BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS
INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE
THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE
SOFTWARE OR OTHERWISE AND EVEN IF STUDIO SOS OR ANY APPROVED SOURCE OR THEIR
SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ACQUIRED THE SOFTWARE IN EUROPE, THE MIDDLE EAST, AFRICA, ASIA OR
OCEANIA, IN NO EVENT WILL STUDIO SOS, ITS AFFILIATES, OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE FOR ANY LOST REVENUE,
LOST PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF
CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE
DAMAGES, HOWSOEVER ARISING , INCLUDING, WITHOUT LIMITATION, IN CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR WHETHER ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SOFTWARE, EVEN IF, IN EACH CASE, STUDIO SOS, ITS AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR
JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT FULLY APPLY TO YOU. THE
FOREGOING EXCLUSION SHALL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN
CONNECTION WITH: (I) DEATH OR PERSONAL INJURY, (II) FRAUDULENT
MISREPRESENTATION, OR (III) STUDIO SOS’S LIABILITY IN CONNECTION WITH ANY TERMS THAT
CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
CUSTOMER ACKNOWLEDGES AND AGREES THAT STUDIO SOS HAS SET ITS PRICES AND ENTERED INTO THE
AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET
FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE
RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS),
AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
CONTROLLING LAW, JURISDICTION. IF YOU ACQUIRED, BY REFERENCE TO THE ADDRESS ON THE PURCHASE
ORDER ACCEPTED BY THE APPROVED SOURCE, THE SOFTWARE IN THE UNITED STATES, LATIN AMERICA,
OR THE CARIBBEAN, THE AGREEMENT AND WARRANTIES (“WARRANTIES”) ARE CONTROLLED BY AND
CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA, UNITED STATES OF AMERICA,
NOTWITHSTANDING ANY CONFLICTS OF LAW PROVISIONS; AND THE STATE AND FEDERAL COURTS OF
CALIFORNIA SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY CLAIM ARISING UNDER THE AGREEMENT OR
WARRANTIES. IF YOU ACQUIRED THE SOFTWARE IN CANADA, UNLESS EXPRESSLY PROHIBITED BY LOCAL
LAW, THE AGREEMENT AND WARRANTIES ARE CONTROLLED BY AND CONSTRUED UNDER THE LAWS OF THE
PROVINCE OF ONTARIO, CANADA, NOTWITHSTANDING ANY CONFLICTS OF LAW PROVISIONS; AND THE
COURTS OF THE PROVINCE OF ONTARIO SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY CLAIM ARISING
UNDER THE AGREEMENT OR WARRANTIES. IF YOU ACQUIRED THE SOFTWARE IN EUROPE, THE MIDDLE
EAST, AFRICA, ASIA OR OCEANIA (EXCLUDING AUSTRALIA), UNLESS EXPRESSLY PROHIBITED BY LOCAL LAW,
THE AGREEMENT AND WARRANTIES ARE CONTROLLED BY AND CONSTRUED UNDER THE LAWS OF ENGLAND,
NOTWITHSTANDING ANY CONFLICTS OF LAW PROVISIONS; AND THE ENGLISH COURTS SHALL HAVE
EXCLUSIVE JURISDICTION OVER ANY CLAIM ARISING UNDER THE AGREEMENT OR WARRANTIES. IN ADDITION,
IF THE AGREEMENT IS CONTROLLED BY THE LAWS OF ENGLAND, NO PERSON WHO IS NOT A PARTY TO THE
AGREEMENT SHALL BE ENTITLED TO ENFORCE OR TAKE THE BENEFIT OF ANY OF ITS TERMS UNDER THE
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999. IF YOU ACQUIRED THE SOFTWARE IN JAPAN, UNLESS
EXPRESSLY PROHIBITED BY LOCAL LAW, THE AGREEMENT AND WARRANTIES ARE CONTROLLED BY AND
CONSTRUED UNDER THE LAWS OF JAPAN, NOTWITHSTANDING ANY CONFLICTS OF LAW PROVISIONS; AND THE
TOKYO DISTRICT COURT OF JAPAN SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY CLAIM ARISING UNDER
THE AGREEMENT OR WARRANTIES. IF YOU ACQUIRED THE SOFTWARE IN AUSTRALIA, UNLESS EXPRESSLY
PROHIBITED BY LOCAL LAW, THE AGREEMENT AND WARRANTIES ARE CONTROLLED BY AND CONSTRUED
UNDER THE LAWS OF THE STATE OF NEW SOUTH WALES, AUSTRALIA, NOTWITHSTANDING ANY CONFLICTS
OF LAW PROVISIONS; AND THE STATE AND FEDERAL COURTS OF NEW SOUTH WALES SHALL HAVE
EXCLUSIVE JURISDICTION OVER ANY CLAIM ARISING UNDER THE AGREEMENT OR WARRANTIES. IF YOU
ACQUIRED THE SOFTWARE IN ANY OTHER COUNTRY, UNLESS EXPRESSLY PROHIBITED BY LOCAL LAW, THE
AGREEMENT AND WARRANTIES ARE CONTROLLED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF
CALIFORNIA, UNITED STATES OF AMERICA, NOTWITHSTANDING ANY CONFLICTS OF LAW PROVISIONS; AND
THE STATE AND FEDERAL COURTS OF CALIFORNIA SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY CLAIM
ARISING UNDER THE AGREEMENT OR WARRANTIES.
FOR ALL COUNTRIES REFERRED TO ABOVE, THE PARTIES SPECIFICALLY DISCLAIM THE APPLICATION OF THE
UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. NOTWITHSTANDING THE
FOREGOING, EITHER PARTY MAY SEEK INTERIM INJUNCTIVE RELIEF IN ANY COURT OF APPROPRIATE
JURISDICTION WITH RESPECT TO ANY ALLEGED BREACH OF SUCH PARTY’S INTELLECTUAL PROPERTY OR
PROPRIETARY RIGHTS. IF ANY PORTION HEREOF IS FOUND TO BE VOID OR UNENFORCEABLE, THE REMAINING
PROVISIONS OF THE AGREEMENT AND WARRANTIES SHALL REMAIN IN FULL FORCE AND EFFECT. EXCEPT AS
EXPRESSLY PROVIDED HEREIN, THE AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE
PARTIES WITH RESPECT TO THE LICENSE OF THE SOFTWARE AND DOCUMENTATION AND SUPERSEDES ANY
CONFLICTING OR ADDITIONAL TERMS CONTAINED IN ANY PURCHASE ORDER OR ELSEWHERE, ALL OF WHICH
TERMS ARE EXCLUDED. THE AGREEMENT HAS BEEN WRITTEN IN THE ENGLISH LANGUAGE, AND THE PARTIES
AGREE THAT THE ENGLISH VERSION WILL GOVERN.