Pixela Corporation
End User License Agreement (Single User
Only, Non-Networked Applications) |
IMPORTANT READ CAREFULLY: This End User License
Agreement ("Agreement") is a legal and binding agreement between
you (either an individual or a single entity) (hereinafter "You"
or "Your") and Pixela Corporation ("Pixela") regarding
the software product. You are about to use, download and/or install and
the associated proprietary media, printed materials, any associated documentation
(including any electronic documentation), and also regarding any updates
or modifications of the foregoing provided by Pixela or its licensees
or agents to You (collectively referred to as the "Product").
WHEN YOU INSTALL OR OTHERWISE USE ANY PART OF THE PRODUCT, YOU ARE CONSENTING
TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT
AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, THEN
(1) YOU WILL NOT HAVE THE RIGHT TO USE THE PRODUCT AND (2) YOU MUST RETURN
THE UNUSED PRODUCT (INCLUDING ALL RELATED MANUALS AND DOCUMENTATION) AND
THE PROOF OF PAYMENT TO THE PLACE YOU OBTAINED THEM FOR A FULL REFUND
WITHIN 30 DAYS OF ACQUIRING THE PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE
TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION
OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF PIXELA SHALL BE CONSTRUED
AS AN INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER
BY PIXELA, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. License
Subject to Your compliance with the terms and conditions of this Agreement,
Pixela hereby grants to You a limited, personal, non-sublicensable, non-transferable,
non-exclusive license to: (i) use one copy of the Product only for Your
personal, noncommercial use on a single computer system and only in accordance
with the accompanying end user documentation; and
(ii) make one copy of the Product in machine readable form solely for
archival back-up purposes, provided You reproduce Pixela's copyright proprietary
legends in any such copy.
2. General Restrictions
You shall not (nor shall You permit anyone else to) directly or indirectly:
(i) copy (except as expressly set forth above), modify, or distribute
the Product or any portion thereof; (ii) reverse engineer, disassemble,
decompile or otherwise attempt to discover the source code or structure,
sequence and organization of the Product or any portion thereof (except
where the foregoing is permitted by applicable local law, and then only
to the extent so permitted); (iii) rent, lease, or use the Product or
any portion thereof for timesharing or service bureau purposes, or otherwise
use or allow the use of the Product or any portion thereof for any commercial
purpose or on behalf of any third party; (iv) remove or obscure any proprietary
notices on the Product; (v) post or otherwise make available the Product,
or any portion thereof, in any form, on the Internet or the World Wide
Web; (vi) distribute copies of the Product to others (electronically or
otherwise); (vii) use a previous version of the Product after you receive
a new version and are asked to discontinue using the previous version;
(viii) use the Product on a network which is shared by others; (ix) distribute
the Product or any component of the Product; or (x) export or reexport
the Product in violation of any laws or regulations. As a specific condition
of this license, You agree to use the Product in compliance with all applicable
laws, including without limitation copyright laws, and that You will not
copy, transmit, perform or distribute any audio, video or other content
using the Product without obtaining all necessary licenses or permissions
from the owner of the content.
3. Special Third Party Limitations/Requirements/Restrictions/Disclaimers/Liability
Limitations with respect to the use of the Product
The Product contains certain third party materials and technology and
the use of the Product is therefore subject to the following additional
limitations, requirements, restrictions, disclaimers and liability limitations:
(i) MPEG-2. Any use of the Product (including any updates) other than
consumer personal use in any manner that complies with the MPEG-2 Standard
for encoding video information for packaged media is expressly prohibited
without a license under applicable patents in the MPEG-2 Patent Portfolio,
which license is available from MPEG LA, 250 Steele Street, Suite 300,
Denver, Colorado, 80206.
4. Proprietary Rights
Pixela and its licensors shall own and retain all right, title, and (except
as expressly licensed hereunder) interest in and to the Product all copies
or portions thereof, and any derivative works thereof (by whomever created).
The Product is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. Notwithstanding
anything else, the Product is licensed and not sold. All rights in the
Product not specifically granted in this Agreement are reserved by Pixela
and its licensors.
5. Confidentiality
You agree to maintain the Product and any data or databases contained
therein in confidence and that You will not disclose the Product to any
third party without the express written consent of Pixela. You may not
use the Product except as set forth herein. You further agree to take
all reasonable precautions to preclude access of unauthorized persons
to the Product.
6. Term and Termination
This license is effective until terminated hereunder. You may terminate
the license at any time by destroying the Product (including the related
documentation) together with all copies or modifications in any form.
Pixela will have the right to terminate the license granted herein immediately
if You fail to comply with any term or condition of this Agreement. The
license granted to You herein will terminate automatically upon any breach
of Sections 1, 2 or 3. Upon termination of this Agreement for any reason,
You shall immediately stop using the Product and shall destroy and remove
from all computers, hard drives, networks, and other storage media all
copies of the Product. Sections 2 through 14 shall survive any termination
of this Agreement.
7. Limited Warranty
For a period of ninety (90) days from the date You purchase the Product
(the "Warranty Period"), Pixela and its Licensors warrant only
that the Product will perform substantially in accordance with the specifications
stated for the Product in the accompanying written end-user documentation.
THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCT THAT HAS BEEN ABUSED, MISUSED,
DAMAGED IN TRANSPORT, ALTERED, NEGLECTED, OR SUBJECTED TO UNAUTHORIZED
REPAIR OR INSTALLATION, AS REASONABLY DETERMINED BY PIXELA.
NOTWITHSTANDING ANYTHING ELSE HEREIN, THE ENTIRE LIABILITY OF PIXELA AND
ITS LICENSORS, AND YOUR EXCLUSIVE REMEDY FOR A BREACH OF THE FORGOING
WARRANTY, SHALL BE, AT PIXELA'S OPTION AND EXPENSE: (A) REPAIR OR REPLACEMENT
OF THE PRODUCT FOR PRODUCT THAT MEETS THE WARRANTY OR (B) A REFUND OF
THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCT, IN BOTH CASES WHERE THE
PRODUCT IS RETURNED TO PIXELA, WITHIN THE WARRANTY PERIOD, AND ACCORDING
TO THE "WARRANTY CLAIM PROCEDURE" OUTLINED BELOW.
8. Warranty Disclaimer
THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY PIXELA. EXCEPT
FOR THE FOREGOING, THE PRODUCT IS PROVIDED "AS IS" AND NEITHER
PIXELA NOR ANY OF ITS LICENSORS PROVIDE A WARRANTY OF ANY KIND WITH REGARD
TO THE PRODUCT. PIXELA AND ITS LICENSORS EXPRESSLY DISCLAIM ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
FURTHER, NEITHER PIXELA NOR ITS LICENSORS WARRANT THE RESULTS OF USE OF
THE PRODUCT OR THAT THE PRODUCT IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED.
PIXELA AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE RESULTS YOU MAY
OBTAIN BY USING THE PRODUCT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN
ESSENTIAL PART OF THIS AGREEMENT.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU
MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
9. Warranty Claim Procedure
If You have purchased the Product bundled with a hardware product, You
must email Pixela at oemsales@pixela.co.jp and request a Return Material
Authorization Number (RMA) and return the Product to:
Pixela Corporation
Shin-Yokohama Branch
4F Shin Yokohama Square Bldg.
2-3-12 Shin Yokohama
Kouhoku-ku, Yokohama
Japan 222-0033
Any claim under the Limited Warranty set forth above must be submitted
before the end of the Warranty Period to Pixela, at the address listed
above. Any returned Product must be insured, shipped freight prepaid,
and securely packaged. Before shipping any product You must receive an
RMA from the emails listed above and include the RMA code, a copy of Your
sales slip and a description of the problem You are experiencing with
the product.
10. Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE HEREIN, UNDER NO CIRCUMSTANCES AND UNDER
NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY TORT, CONTRACT, NEGLIGENCE,
STRICT LIABILITY, OR OTHER LEGAL THEORY, SHALL PIXELA OR ITS LICENSORS
BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY PUNITIVE, INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE,
ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING
FROM YOUR USE OF THE PRODUCT, OR (II) FOR ANY MATTER BEYOND PIXELA OR
ITS LICENSOR'S REASONABLE CONTROL. PIXELA'S AND ITS LICENSOR'S MAXIMUM
LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT
SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCT, EXCEPT
WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE PIXELA'S LIABILITY
SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW.
THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF PIXELA HAS BEEN INFORMED
OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY
TO YOU.
11. Export
You shall comply with all export laws and restrictions and regulations
of the Department of Commerce, the United States Department of Treasury
Office of Foreign Assets Control ("OFAC"), or other United States
or foreign agency or authority, and You shall not export, or allow the
export or re-export of the Product in violation of any such restrictions,
laws or regulations. By using the Product, You agree to the foregoing
and represents and warrants that You are not located in, under the control
of, or a national or resident of any restricted country.
12. Indemnity
You agree that Pixela shall have no liability whatsoever for any use
You make of the Product. You shall indemnify and hold harmless Pixela
from any third party claims, damages, liabilities, costs and fees (including
reasonable attorney fees) arising from Your use of the Product as well
as from Your failure to comply with any term of this Agreement.
13. Government Restricted Rights
If You are an agency, department, or other entity of the United States
Government ("Government"), the use, duplication, reproduction,
release, modification, disclosure or transfer of the Product, or any related
documentation of any kind, including technical data or related manuals,
is restricted in accordance with Federal Acquisition Regulation 12.212
for civilian agencies and Defense Federal Acquisition Regulation Supplement
227.7202 for military agencies. This Product is commercial computer software
and the related documentation is commercial computer software documentation.
The use of the Product and related documentation is further restricted
in accordance with the terms of this Agreement, or any modification hereto.
Pixela Corporation is locatedat 4F Shin-Yokohama Square Bldg., 2-3-12
Shin-Yokohama, Kouhoku-ku, Yokohama, Japan 222-0033.
14. General
This Agreement represents the complete agreement concerning this license
between the parties and supersedes all prior agreements and representations
between them. This Agreement may be amended only by a writing executed
by both parties. If any provision of this Agreement is held to be illegal
or unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary to make it legal and enforceable and this Agreement
shall otherwise remain in full force and effect and enforceable. The failure
of Pixela to act with respect to a breach of this Agreement by You or
others does not constitute a waiver and shall not limit Pixela's rights
with respect to such breach or any subsequent breaches. This Agreement
is personal to You and may not be assigned or transferred for any reason
whatsoever without Pixela's prior written consent and any action or conduct
in violation of the foregoing shall be void and without effect. Pixela
expressly reserves the right to assign this Agreement and to delegate
any of its obligations hereunder. This Agreement shall be governed by
and construed under California law (without regard to its conflicts of
laws provisions) as such law applies to agreements between California
residents entered into and to be performed within California. The sole
and exclusive jurisdiction and venue for actions arising under this Agreement
shall be the State and Federal courts in San Francisco, California. You
hereby agree to service of process in accordance with the rules of such
courts. The party prevailing in any dispute under this Agreement shall
be entitled to its costs and legal fees.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY
AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASIS
OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED
IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS
AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
Questions concerning this Agreement should be sent to the address set
forth below. Any notices or correspondences will only be effective if
sent to such address.
Pixela Corporation
Shin-Yokohama Branch
4F Shin Yokohama Square Bldg.
2-3-12 Shin Yokohama
Kouhoku-ku, Yokohama
Japan 222-0033
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