YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING, INSTALLING AND USING THE CINEDECK & CINEXTOOLS SOFTWARE PROVIDED BY CINEDECK LLC.
(the Licensor).
These are the terms and conditions on which the Licensor licenses to you (the Licensee) to use the software product known as the Cinedeck & CineXtools (the Software.) By clicking on the “ACCEPT” button, you are agreeing to the following terms and conditions (the Agreement). If you DO NOT AGREE to the following terms, you must not download, install or use this Software.
1. Grant of License
1.1 The Licensor grants to the Licensee a non-exclusive, non-transferable, royalty-free license to use the Software for the term of this Agreement.
1.2 The Licensee is entitled to download, install and use the Cinedeck Software on the Cinedeck device or for CineXinsert on your chosen hardware device.
1.3 The Licensee agrees to use the Software only for the Permitted Use and in compliance with all applicable laws, including all applicable intellectual property laws.
1.4 The Licensee must not lease, rent, distribute or sub-license the Software, or use the Software in a time-sharing arrangement, or in any other manner that is not the permitted use.
1.5 The Licensee may make one copy only of the Software if it is essential for back-up and archival purposes, in accordance with
its use of the Software. Any such copy must reproduce and contain all of the copyright and other proprietary notices appearing in
the Software.
1.6 The Licensor reserves the right at any time to alter the price, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
2. Warranty and Disclaimer
2.1 The Software has not been written to meet individual requirements of the Licensee and is supplied without warranty of
any kind. A failure of any part or the whole of the Software to be suitable for the Licensee’s requirements will not give rise to any
right or claim against the Licensor.
2.2 THE LICENSOR MAKES NO WARRANTY OR REPRESENTATION TO THE LICENSEE AS TO THE PERFORMANCE OR OPERATION OF THE SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL EXPRESS,
IMPLIED AND STATUTORY WARRANTIES, INCLUDING (BUT NOT LIMITED TO) MERCHANTABILITY, FITNESS FOR PURPOSE, SECURITY, RELIABILITY, NON-INFRINGEMENT AND PERFORMANCE OF THE SOFTWARE.
2.3 The Licensee acknowledges and agrees that it downloads, installs and uses the Software at its own discretion and risk, and that it will be solely responsible for any damage to the Cinedeck EXTREME or any loss of data that results from such downloading, installing or use of the Software.
2.4 To the fullest extent permitted by law, any condition or warranty which would otherwise be implied in this Agreement is
hereby excluded. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits
provisions in a contract from excluding or modifying the application of or exercise of or liability under such a condition or warranty, that condition or warranty will be deemed to be included in this Agreement. However, the liability of the Licensor for any breach of such a condition or warranty will be limited, at the option of the Licensor, to one or more of the following: in the case of the supply of goods: the replacement of the goods; the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and in the case of the provision of services: the supplying of the services again; or the payment of the cost of having the services supplied again.
2.5 The Licensee acknowledges that the Software in general is not error-free and agrees that the existence of such errors will not constitute a breach of this Agreement.
2.6 The Licensor does not warrant that the Software will be free from all known viruses and the Licensee is solely responsible for virus scanning the Software.
2.7 The Licensor does not warrant that the Software will enable the Licensee to render its products compatible with the Licensor’s
3. Liability
3.1 IN NO EVENT WILL THE LICENSOR BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TOTHIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
3.2 The aggregate liability of the Licensor upon any claims howsoever arising out of or relating to this Agreement or any products or services furnished or to be furnished by the Licensor under this Agreement will in any event be absolutely limited to US$100.
3.3 Unless this Agreement expressly provides otherwise: to the maximum extent permitted by law, all express and implied conditions, warranties or liabilities (including liability as to negligence) regarding the condition, accuracy, suitability, quality or title to the Software are negated and excluded; and the Licensor gives no condition, warranty, undertaking or representation in relation to the condition, accuracy, suitability, quality of or title to the Software (including any data contained in or supplied in relation to it or reports generated or produced by or with the aid of any of them).
3.4 The Licensee acknowledges that the Licensor has entered into this Agreement in reliance upon the Warranty and Disclaimer and Liability clauses set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitation of liability specified in this Agreement will survive and apply even if the Warranty and Disclaimer or Liability clause, or any limitation of remedies is found to have failed its essential purpose.
4. Intellectual Property Rights
4.1 For the purposes of this Agreement, the term Intellectual Property Rights means all copyright, patents, designs, trademarks or service marks, brand names, product names, trade secrets, know-how, rights to confidentiality and other intellectual and industrial property rights (including Marks as defined in clause 6), whether or not registered or capable of registration, in all parts of the world.
4.2 The Licensee acknowledges that it obtains no Intellectual Property Rights whatsoever in the Software. As between the parties all Intellectual Property Rights vest in the Licensor.
4.3 The Licensee must not, except to the extent permitted by any law that cannot be excluded by the parties, copy, modify, disassemble, decompile, or reverse engineer the Software nor directly or indirectly permit any third party to do any of the foregoing.
4.4 The only permitted copying of the Software is for the back-up purposes referred to in clause 1.5. The Licensee acknowledges and agrees that ownership of, and title to, the Software and all subsequent copies thereof regardless of form or media are held by the Licensor.
5. Infringement of Intellectual Property Rights.
5.1 If the Licensee becomes aware of any infringements or suspected infringements by any third party of any Intellectual Property Rights in the Software, the Licensee must immediately notify the Licensor, and must at the request and expense of the Licensor, take such action as the Licensor may reasonably deem appropriate to protect its Intellectual Property Rights.
6. Marks
6.1 The Licensee will not adopt or use, nor authorise others to adopt or use, any trademark, service mark or trade name which includes, or is likely to mislead, deceive or cause confusion, or is substantially identical with, or deceptively similar to, any Mark. This clause will survive the expiration or earlier termination of this Agreement.
6.2 For the purposes of this Agreement, the term Marks means any trademark, service mark or trade name of Cinedeck LLC or its affiliates, as the case may be, including but not limited to “Cinedeck ” and “cineXinsert” whether it is registered or capable of being registered.
7. Term and Termination
7.1 This Agreement is effective until terminated.
7.2 The Licensor may immediately terminate this Agreement at any time with or without notice: at the Licensor’s sole discretion; or if the Licensee breaches a term of this Agreement.
7.3 Upon termination of this Agreement, the Licensee must immediately cease to use the Software and if capable of return, return the Software (and all copies thereof) to the Licensor. Where such Software is incapable of return, the Licensee must permanently delete or destroy the Software and provide a declaration to the Licensor that the Licensee has complied with this clause.
7.3. This requirement is without prejudice to any other rights and remedies that the Licensor may have in respect of the breach.
7.4 Despite any other provision of this Agreement this clause 7.4 and clauses 2, 3, 4, 5, 6, 7.3 and 8 survive the expiration or termination of this Agreement.
8. General
8.1 This written Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all prior communications and agreements between the parties as to its subject matter. Each party agrees that unless expressly stated in this Agreement, that party has not relied on any representation, warranty or undertaking of any kind in relation to the subject matter of this Agreement.
8.2 If any provision of this Agreement or any part of a provision is unenforceable or void for any reason, then: that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the economic intent of the parties, and the remainder of this Agreement will continue in full force and effect; and in any other case, such provision must be severed from this Agreement, in which case a valid, legal and enforceable provision of similar intent and economic impact will be substituted, and the remaining provisions will continue in full force and effect as if the severed provision had not been included.
8.3 The Licensee must not, without prior written consent of the Licensor assign, charge, sub-license, or otherwise transfer any of its rights or obligations under this Agreement in whole or in part.
8.4 Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder will not be construed as a waiver of such provision or right to subsequently enforce the same.
8.5 Clause headings have been included in this Agreement for convenience only and must not be considered part of, or be used in interpreting, this Agreement.
8.6 This Agreement is governed by and must be construed in accordance with the laws in force in the State of New York. The parties submit to the exclusive jurisdiction of the courts of that State and the United States of America in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
8.7 The Licensee agrees to abide by all applicable laws of the State of New York and all applicable jurisdictions, including the federal laws of the United States. The Licensor reserves the right to enforce its Intellectual Property Rights before the competent courts of any jurisdiction where an act of infringement has occurred.
8.8 The Licensee acknowledges and agrees that it will not export or re-export the Software or any products utilizing the Software in violation of any applicable laws or regulations of the United States of America.