YaWah.com - EREZ IMAGING SERVER™
End User License Agreement ("Agreement")
Cher Client, une version traduite en français du Contrat de Licence Utilisateur Final (CLUF) de langue anglaise est disponible auprès de YaWah/Adobe sur simple demande gratuite.
Vous pouvez télécharger cette traduction française du CLUF sur le site : http://www.yawah.com/rsrc/eRez-EULA-fr.html
NOTICE: PLEASE READ THIS AGREEMENT CAREFULLY. THESE TERMS AND CONDITIONS ARE BETWEEN YAWAH APS (“YaWah”) AND YOU AND GOVERN YOUR USE OF THE eRez IMAGING SERVER™ ("Software"). BY ACCESSING, INSTALLING OR OTHERWISE USING ALL OR ANY PORTION OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN, SIGNED AND NEGOTIATED AGREEMENT.
1. DEFINITIONS: A “customer” means a person, company, or other entity which buys goods or services produced by you. A “Full Use Customer” means a customer who directly or indirectly uses the Software to make the customer’s digital media content available to third parties. This includes but is not limited to publishing images owned by the customer to a web site. A “Limited Use Customer” means a customer who is directly or indirectly using the Software to access digital media content - but can not directly or indirectly use the Software to make the customer’s own digital media content data available to third parties. The "Permitted Number” of Full Use Customers means none (0) unless otherwise stated under a separate and valid ASP license granted by YaWah. If you have licensed the Software as CPU-Limited Software, then "Permitted Number” of CPUs means one (1) unless otherwise stated under a separate and valid license granted by YaWah. “Total number of CPUs on the Computer” means the number of CPUs as reported by the operating system on the computer including additional CPUs enabled by means of Hyper-Threading, Multi-Core or similar techniques. If you have licensed the Software as Image-Limited Software, then "Permitted Number” of images means one (1) unless otherwise stated under a separate and valid license granted by YaWah. For all other purposes "Permitted Number" means one (1) unless otherwise stated under a separate and valid license granted by YaWah.
2. GRANT OF LICENSE: Subject to the terms and conditions of this Agreement, YaWah hereby grants you a worldwide, non-exclusive, non-transferable limited license to install and use the object code version of the Software for the purpose described in online reference user manual or online help reference documentation, as follows: (i) on a single computer on your internal network, for internal purposes only (Limited Use Customer basis), provided that: (a) with respect to CPU-Limited Software the total number of CPUs on the computer on which the Software is installed does not exceed the Permitted Number; (b) with respect to Image-Limited Software the total number of Images on the computer on which the Software is installed does not exceed the Permitted Number; or (ii) on your network on a Full Use Customer basis (ASP license), provided that the total number of Full Use Customers does not exceed the Permitted Number, or (iii) a term license according to (ii), limited to the period of time separately stated by YaWah. Unless otherwise stated in a separate and valid license agreement, the license granted by YaWah to you is a Limited Use Customer license. If the license granted to you by YaWah is according to Section 2 (ii) or (iii) you may sublicense the use of the Software to the Permitted Number of Full Use Customers as separately stated by YaWah, provided that (x) you are responsible for ensuring that any such sub-licensee agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to you; and (y) you shall remain fully liable for any and all acts or omissions by the sub-licensee related to this Agreement.
3. TRIAL VERSION: If the product you have installed is an evaluation, pre-release or not for resale version of the Software ("Evaluation Software"), then Section 2 of this Agreement does not apply, and this Section 3 applies until such time that you purchase a license to the Software or to the full retail version of such product. As a trial user of the Evaluation Software, YaWah grants you a limited license solely for evaluation and demonstration purposes of the Evaluation Software. Additional limitations may be provided for in e-mail communications to you or in the web pages describing trial use of the Evaluation Software. Your right to use the Evaluation Software shall terminate automatically (without notice) and immediately upon expiration of 30 days from your activation of the Evaluation Software. In addition, YaWah reserves the right, for any reason in its sole discretion without notice, to discontinue or suspend your trial use, and to terminate the license. YOU ACKNOWLEDGE THAT THE EVALUATION SOFTWARE MAY (i) EMBED WATERMARKS ON IMAGES CREATED USING THE EVALUATION SOFTWARE (ii) HAVE LIMITED FEATURES (iii) FUNCTION FOR A LIMITED PERIOD OF TIME OR (iii) HAVE OTHER LIMITATIONS NOT PRESENT IN THE SOFTWARE. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the Evaluation Software, but only to the extent necessary to resolve the conflict.
4. RESTRICTIONS: You acknowledge and agree that the Software provided by YaWah hereunder contain proprietary information and in order to protect such information, you shall not, nor allow a third party to: (a) decompile, reverse engineer, disassemble or otherwise attempt to derive the source code of the Software, unless and to the extent permitted by mandatory rights granted to you under applicable law; (b) copy any of the Software, unless and to the extent permitted by mandatory rights granted to you under applicable law; (c) alter, modify or translate the Software; or (d) sublicense, sell, lease, lend, assign, transfer, post, transmit or distribute the Software to anyone else, unless and to the extent explicitly stated in this Agreement.
5. OWNERSHIP: The Software is licensed, not sold, to you. As between you and YaWah, YaWah and its licensors shall retain all right, title and interest in and to the Software, and all graphics, logos, service marks and trade names, including third-party names, products names and brand names used in connection with the provision of the Software (“Marks”). You shall not alter or remove any Marks or YaWah copyright or related notices in the product, labeling or documentation provided. You are welcome to send suggestions on improving the Software, but in doing so, you acknowledge and agree that such suggestions will become the property of YaWah, and YaWah has no obligation to compensate you for such suggestions.
6. CONFIDENTIALITY: Any license key, activation code, or similar installation, access or usage control codes (“License Key”) provided by YaWah to you is considered the confidential information of YaWah, and you must hold such License Key in strict confidence. If you are an entity, you may provide License Key access to persons internally solely and strictly on a need-to-know basis. You may not disclose License Keys to any third party.
7. MODIFICATIONS: YaWah reserves the right to modify the Software from time to time without obligation to notify you, or any other person or organization of such revision or change.
8. THIRD PARTY RIGHT: The Software may contain third party software or certain components bundled with the Software are provided by third parties. Such third party software and components are subject to the additional terms and conditions located at http://www.yawah.com/license/thirdparty.html (or a successor website thereto) and are made part of and incorporated by reference into this Agreement. .
9. WARRANTY: YaWah warrants to you that the Software will perform substantially in accordance with online reference user manual or online help reference documentation for the ninety (90) day period following activation of the Software when used on the recommended operating system, platform and hardware configuration as specified in online reference user manual or online help reference documentation. This limited warranty does not apply to the Evaluation Software. All warranty claims must be made within such ninety (90) day period. If the Software does not perform as warranted above, the entire liability of YaWah and your exclusive remedy shall be limited to either, at YaWah’s option, the replacement of the Software or the refund of the license fee paid to YaWah for the Software whereupon the license to such software shall automatically terminate.
10. DISCLAIMER: THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY YAWAH AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR YAWAH’S, ITS AFFILIATES’ OR ITS SUPPLIERS’ BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE IN YOUR JURISDICTION, YAWAH, ITS AFFILIATES AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY: EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO EVENT WILL YAWAH, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF A YAWAH REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. DEPENDING UPON WHERE YOU ARE LOCATED, YOU MAY HAVE OTHER MANDATORY RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. YAWAH’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this Agreement limits YaWah’s liability to you in the event of death or personal injury resulting from YaWah’s negligence or for the tort of deceit (fraud). YaWah is acting on behalf of its affiliates and suppliers for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose.
12. FORCE MAJEURE: Except for payment obligations, neither party shall be responsible for any failure or delay in its performance due to circumstances beyond its reasonable control.
13. COMPLETE AGREEMENT: Both parties agree that this Agreement (made up of these terms, including any website terms or other terms referenced therein) is the complete and exclusive statement of their mutual understanding and supersedes and cancels all previous written and oral agreements, advertisements, proposals, communications, and other understandings related to the subject matter of this Agreement, including any terms in your purchase order or similar document even if signed by the parties after the date hereof. No change or modification of this license will be valid unless it is in writing and is signed by YaWah. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. The English version of this Agreement shall be the version used when interpreting or construing this Agreement; particularly, if you acquired this Software in Canada or Europe, you agree to the following: The parties to this Agreement have expressly required that this Agreement be drawn up in the English language/Les parties aux presentes ont expressement exige que la presente convention soient redigees en langue anglaise.
14. GOVERNING LAW/VENUE: This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in: (a) the State of California, if a license to the Software is obtained when you are in the United States, Canada, or Mexico; or (b) Japan, if a license to the Software is obtained when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) England, if a license to the Software is obtained when you are in any other jurisdiction not described above. The respective courts of Santa Clara County, California, when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover reasonable fees and costs (including attorneys’ fees).
15. MISCELLANEOUS: Any headings shall be of no legal consequence. The parties have read this Agreement, and had the opportunity to consult with their legal advisors. It will be fairly interpreted according to its terms, without strict construction against either party. No agency, partnership, or joint venture is created hereby. If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions will remain in full force and effect. YaWah’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by YaWah in writing. You will comply with all applicable federal, state, local and foreign laws and regulations with respect to any exercise of your rights hereunder, including any laws prohibiting the deliverables hereunder from being shipped, ported, transferred, exported or accessed into or by any country or used in any manner prohibited by the United States Export Administration Act or other applicable export control laws and regulations. The proprietary and other rights of YaWah herein extend to its licensors, affiliates and subsidiaries including but not limited to Scene7, Inc. and Adobe Systems Inc.
16. NOTICE TO U.S. GOVERNMENT END USERS: YaWah agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence will be incorporated by reference in this Agreement.
17. COMPLIANCE WITH LICENSES: YaWah may, at its expense, and no more than once every twelve (12) months, appoint its own personnel or an independent third party to verify the number of copies and installations as well as usage of the Software in use by you. Any such verification shall be conducted upon seven (7) business days’ prior notice, during regular business hours at your offices and shall not unreasonably interfere with your business activities. Both YaWah and its auditors shall execute a commercially reasonable non-disclosure agreement with you before proceeding with the verification. If such verification shows that the use of the Software is greater than the Permitted Number legitimately licensed, or that the use or deployment of the Software in any other way is not permitted under this Agreement and which would require additional license fees, you shall pay the applicable fees for such additional use within thirty (30) days of invoice date, with such underpaid fees being the license fees as per YaWah’s then-current, country specific, license fee list. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under this Agreement, then you shall pay such underpaid fees and YaWah’s reasonable costs of conducting the verification.
18. TERM AND TERMINATION: This Agreement shall remain in effect until any material breach of this Agreement by you occurs, upon which this Agreement shall automatically terminate. By way of example only and without limitation, non-payment of Software license fees due to YaWah shall constitute a material breach of this Agreement. Upon termination of this Agreement for any reason, you shall discontinue use of the Software and shall destroy the Software and any copies thereto. Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive termination of this 10 (Disclaimer), 11 (Limitation of Liability), 13 (Complete Agreement), 14 (Governing Law/Venue), 15 (Miscellaneous), 16 (Notice to U.S. Government End Users), and 18 (Term and Termination).
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