SOFTWARE LICENSE AGREEMENTTHIS SOFTWARE TRIAL AGREEMENT (“Trial Agreement”) and SOFTWARE LICENSE AGREEMENT (“License Agreement”) is by and between COLOR YOKE INC., a Texas corporation ("COLOR YOKE") and the company identified on the submitted trial request and/or license request ("Company").ColorPonyTM (“ColorPony” or the “Software”) is a product designed to produce reproductions of fine art efficiently and accurately. The Software allows a photographer to load an image of a piece of art along with other data, and ColorPony will correct the image so that it matches the original artwork as closely as possible. Your system should conform to the following requirements for ColorPony to function properly:
SYSTEM COMPATIBILITY REQUIREMENTS
1. Windows XP SP3, Windows Vista or Windows 7
2. Microsoft .NET framework 3.5
1. Mac OS X 10.7 (Lion), Mac OS X 10.6.x (Snow Leopard) or Mac OS X 10.5.8 (Leopard) and above
BOTH PC & MAC VERSIONs
1. 2 GB of RAM
2. 1250 MB of disk space
3. Internet connection
SUPPLEMENTAL REQUIREMENTS1. Camera that supports capture in raw-mode with image format readable by COLOR YOKE. COLOR YOKE reserves the right to support only specific cameras.2. A white reference board, at least the size of the painting to be reproduced3. Xrite i1 spectrophotometer or equivalent instrument. The instrument must be able to read spectral data and output the data in a format supported by COLOR YOKE.Company and COLOR YOKE hereby agree to the terms and conditions set forth below in the Trial Agreement and License Agreement and, therefore, the parties agree as follows: TRIAL AGREEMENTTrial licenses are subject to the terms and conditions of this Trial Agreement.IMPORTANT: READ THIS TRIAL AGREEMENT CAREFULLY. BY DOWNLOADING THE COLORPONY SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS TRIAL AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS TRIAL AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE COLORPONY SOFTWARE.Company may request that COLOR YOKE arrange a forty five (45) day trial period (the "Trial Period") for Company to evaluate the Software. When Company is granted a Trial Period, Company and COLOR YOKE hereby agree to the terms and conditions set forth in below in the License Agreement and this Trial Agreement. The Trial Agreement will supersede the License Agreement if and where conflicts may exist between the two agreements. Therefore, the parties agree as follows: 1. Limited Use. COLOR YOKE grants to Company a nonexclusive, nontransferable, revocable right to use the Software (in object code form only) on Company's computer(s) and system(s) specified in the submitted trial request only (collectively, the "System"), solely for the purpose of evaluation for possible licensing from COLOR YOKE and only for the Trial Period, which period shall begin upon receipt by the Company of the submitted trial request. Company shall not modify the Software in any way and Company shall not copy, sell, rent, sublicense, give away or otherwise transfer the Software or any portion thereof, provided, however, that Company may make copies of the Software only to the extent necessary to use it on Company's System in accordance with the limited right granted hereunder, and the Software shall not be installed or used in, for or by any service bureau, time-sharing or outsourcing service. Company further agrees that it shall not reverse-compile, disassemble, reverse-assemble or trace the Software. Company shall not rely upon the Software for business applications during the Trial Period and Company shall be solely responsible for the protection and backup of its data and any images and artwork files used in conjunction with the Software during the Trial Period. As used in this Trial Agreement - which includes the submitted trial request - the word "Software" includes all programs and documentation distributed to Company (including all tools, utilities, algorithms, ideas and concepts embodied therein) and any related information disclosed by COLOR YOKE to Company and any portion thereof in any form. 2. Ownership and Nondisclosure. Company acknowledges and agrees that COLOR YOKE is the owner, or the authorized distributor of, the Software and, except as set out above, this Trial Agreement does not grant to Company any right, title or interest in or to this Software, including in or to any intellectual property or proprietary right in or to the Software, and Company shall not obtain or claim any right, title or interest in or to the Software, or any portion thereof, or any intellectual property or proprietary right therein. Company further acknowledges and agrees that the Software embodies confidential information and trade secrets of COLOR YOKE or the owner and Company shall not disclose any portion of the Software to any third party, including any person who is not Company's full-time employee having a need to know for the purpose of this Trial Agreement, unless any such third party or person has executed a nondisclosure agreement reasonably acceptable to COLOR YOKE and covering the Software.
3. DISCLAIMER. THE SOFTWARE IS BEING PROVIDED "AS IS", AND COLOR YOKE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE PROVIDED HEREUNDER. Without limiting any other provision of this Trial Agreement, COLOR YOKE shall not be liable for any direct, special, indirect or consequential damages resulting from the installation, use performance or nonperformance of the Software during the Trial Period or for any damages arising out of or in connection with any malfunctions, delays, loss of data or image files, lost profits, lost savings, interruption of service, loss of business or anticipatory profits, even if COLOR YOKE has been advised of the possibility of such damages. Information regarding system compatibility requirements for users of the Software, as well as data that will be collected and transmitted by the Software is defined in the License Agreement.
4. Term. This Trial Agreement shall commence as of the date on which the submitted trial request has been received by COLOR YOKE and, unless terminated earlier in accordance with this Agreement or extended agreement of the parties, shall automatically terminate at 11:59 p.m. on the forty fifth (45th) day of the Trial Period. Any provision of this Trial Agreement intended to survive the termination of this Agreement shall survive termination of this Trial Agreement and continue in full force and effect. At the end of the Trial Period, Company shall either purchase a license to use the Software, in accordance with COLOR YOKE's standard terms and conditions therefore, or shall return the Software and related materials, at its own expense, to COLOR YOKE with an executed letter, stating that Company has removed from its System and destroyed all copies of the Software. LICENSE AGREEMENT
5. Governing Law; Jurisdiction; Severability. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without reference to the conflict of laws principles of any jurisdiction. Any suit arising out of this Agreement shall be brought in a federal or state court in Austin, Texas. Each party agrees that such court shall have personal jurisdiction over it. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect.
Purchased licenses are subject to the terms and conditions of this License Agreement.IMPORTANT: READ THIS LICENSE AGREEMENT CAREFULLY. BY MAKING PAYMENT AND DOWNLOADING THE COLORPONY SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE COLORPONY SOFTWARE.
This License Agreement is a legal agreement between you and COLOR YOKE granting you certain rights to access and use the Software and related documentation owned by COLOR YOKE. YOU HEREBY AGREE, BOTH ON YOUR OWN BEHALF AND AS AN AUTHORIZED REPRESENTATIVE OF ANY ORGANIZATION FOR WHICH YOU ARE USING THE SOFTWARE ("EMPLOYER"), THAT YOU AND YOUR EMPLOYER WILL USE THE SOFTWARE ONLY IN ACCORDANCE WITH THE FOLLOWING TERMS: 1. PROPRIETARY RIGHTS: The Software and any accompanying documentation are the proprietary products of COLOR YOKE. Ownership of the Software and all copies, modifications, translations, and merged portions thereof shall at all times remain with COLOR YOKE.2. GRANT OF LICENSE and TERM: The Software and accompanying documentation are being licensed to you, which means you have the right to use the Software only in accordance with this License Agreement. The Software is considered in use on a computer when it is loaded into temporary memory or installed into permanent memory. This license is effective from your date of purchase and is a perpetual license, unless terminated in accordance with this License Agreement. You may terminate the license and this License Agreement at any time by destroying the Software and the accompanying documentation, together with all copies in any form. Should you violate the terms of this License Agreement, the license shall be terminated effective immediately. PERSONAL LICENSE: This license is personal to you. You may not sublicense, lease, sell, or otherwise transfer the Software or any of the accompanying documentation to any other person. You may use the Software only for your own personal use if you are an individual or for your own internal business purposes if you are a business. You are authorized to use ONLY a single copy of the Software on a single computer at any given time. The Software may not be used by any other individual without purchasing additional licenses. All copies of Software must include our copyright notice and other legal notices.COMPUTER LICENSE: Each permitted copy of the Software may be used only in connection with a hard drive(s) that is permanently connected to ONE specific computer (either a stand-alone computer or a computer connected to a network) owned or leased by you. If the Software is made available on a network, only ONE specific computer may access it. It may not be used on any additional computers without purchasing additional licenses. All copies of the Software must include our copyright notice and other legal notices. 3. UPDATES: When you purchase any COLOR YOKE product, you receive minor version product updates and Level One technical support for the period of one year from the date of original purchase. You will receive major version product updates and Level Two technical support for the period of 90 days from the date of original purchase. If you wish to receive any future upgraded versions of the Software that may be released by COLOR YOKE, you will be required to pay additional license fees as determined by COLOR YOKE. 4. TECHNICAL SUPPORT: Technical support is limited to ColorPony and the features within the Software. Problems and issues arising because of user’s input and output equipment are outside this scope. The manufacturers of those products should be consulted for such support.(a) Level One: Technical Support via Email. Email inquires and questions should be directed to COLOR YOKE’s support email: firstname.lastname@example.org. (b) Level Two: Technical Support via Telephone. Phone inquires and questions should be directed to COLOR YOKE’s support line: (415) I-YOKE-IT.(c) Level Three: Consultant Services. COLOR YOKE consultants are available to address your specific needs and ensuring that you are obtaining the maximum gain from said products. Such consulting, and, if necessary, any/all travel and living expenses to/from customer site will be a billable service and are NOT included as part of this license agreement. 5. DATA TRANSMISSION: The Software will collect Company's IP and/or MAC address to verify that the Software is being used in accordance with this License Agreement.The Software will collect the filenames of all inputs, the job number, and/or image adjustment information to optimize the performance of the Software. COLOR YOKE will use its best efforts to keep collected information secure and confidential. No image data or spectral data is collected.6. PROTECTION OF YOUR DATA AND FILES. You shall be solely responsible for the protection and backup of your data and any images and artwork files used in conjunction with the Software. You should create backup files of any image files prior to your use of the Software to modify such files.7. NONPERMITTED USES: Without the express prior written permission of COLOR YOKE, you may not: (a) use, copy, modify, alter or transfer electronically or otherwise, the Software or documentation except as expressly permitted in this License Agreement; or (b) translate, reverse program, disassemble, decompile, or otherwise reverse engineer the Software. 8. EXPORT CONTROLS: Certain uses of the Software by you may be subject to restrictions under U.S. regulations relating to exports and ultimate end uses of computer software. You agree to fully comply with all applicable U.S. laws and regulations, including but not limited to the Export Administration Act of 1979 as amended from time to time and any regulations promulgated thereunder. 9. U.S. GOVERNMENT RESTRICTED RIGHTS: If you are acquiring the Software on behalf of any unit or agency of the United States Government, the following provision applies: It is acknowledged that the Software and the documentation was developed at private expense and that no part is in the public domain and that the Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor / Manufacturer is:Color Yoke, Inc.4611 Edgemont DriveAustin, TX 78731U.S.A. 10. LIMITED WARRANTY: (a) COLOR YOKE represents and warrants to you, the original end-user, that the Software will perform substantially in accordance with the accompanying documentation. This Limited Warranty extends for ninety (90) days from the date of purchase. (b) This Limited Warranty does not apply to any Software that has been altered, damaged, modified or used other than in accordance with this license and any instructions included on the Software and the accompanying documentation. (c) COLOR YOKE's entire liability and your exclusive remedy under this Limited Warranty shall be the repair or replacement of any Software that fails to conform to this Limited Warranty or, at COLOR YOKE's option, return of the price paid for the Software. COLOR YOKE shall have no liability under this Limited Warranty unless the Software is returned to COLOR YOKE or its authorized representative, with a copy of your receipt, within the warranty period. Any replacement Software will be warranted for a period of 90 days. (d) THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING. (e) THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. (f) Your failure to complete the electronic registration included with the Software may result in COLOR YOKE's inability to provide you with updates to the Software, and you assume the entire risk of performance and result in such an event. 11. LIMITATION OF LIABILITY. IN NO EVENT SHALL COLORYOKE'S LIABILITY RELATED TO ANY OF THE SOFTWARE EXCEED THE LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE. EXCEPT FOR A RETURN OF THE PURCHASE PRICE UNDER THE CIRCUMSTANCES PROVIDED UNDER THE LIMITED WARRANTY, COLORYOKE SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF COLORYOKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU12. NO WAIVER: Any failure by either party to this License Agreement to enforce a specific part of the License Agreement in a specific situation is not a waiver of rights under the License Agreement. The party may still enforce the rest of the License Agreement in that situation and may still enforce some or all of the License Agreement in other situations.13. CONCLUSION: This License Agreement constitutes the entire agreement between you and COLOR YOKE pertaining to its subject matter. The laws of the State of Texas govern this License Agreement. Any litigation arising from this license will be pursued only in the state or federal courts located in Austin, Texas. Even if part of the License Agreement is held invalid, the rest of the License Agreement is still valid, binding and enforceable. Should you have any questions concerning this License Agreement, or if you desire to contact COLOR YOKE for any reason, please email or write to:Color Yoke, Inc.4611 Edgemont DriveAustin, TX 78731U.S.A. Email: email@example.com
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