End User Licence Agreement
PLEASE READ CAREFULLY BEFORE DOWNLOADING SOFTWARE FROM THIS WEBSITE.
This end-user licence agreement (“EULA”) is a legal agreement between you and Color Trix Limited of Holed Stone Barn, Stisted Cottage Farm Hollies Road, Bradwell, Braintree, Essex, United Kingdom, CM77 8DZ (“Licensor”) for a software application used with Final Cut Pro known as “Color Finale” (“the Software”)
We license use of the Software to you on the basis of this EULA We do not sell the Software to you. We remain the owners of the Software at all times.
This software is designed to be used on Apple computers manufactured after 2012 with Intel CPU and Metal 2 compatible GPU, running MacOS 10.14 Mojave (except computers with Vega GPUs or MacPro 2013) or MacOS 10.15 Catalina (recommended) and Final Cut Pro 10.4.8 or 10.4.9. You will not be able to activate the Software without an operational Internet connection.
If you do not agree to the terms of this licence, we will not license the Software to you and you must not stop the downloading now by clicking on the "cancel" button below. In this case the downloading process will terminate.
Please should print this EULA for and keep it in a safe place for your future reference.
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
|Intellectual Property Rights||patents, trade marks, internet domain names, service marks registered designs, applications for any of the foregoing, and copyright, design rights, know-how, confidential information, trade and business names and other similar protected rights in any country|
|Software||the applications computer programs described in the Order in compiled form, including any modifications to and modified or enhanced versions thereof which may be supplied by the Licensor to you from time to time|
|Licensed Materials||the Software and the Documentation|
|the Licence||the licences granted in this Agreement pursuant to clause 3|
|Order||the order form where you order a Licence for the Software and/or Documentation|
|Product Description||the product description of the Software which sets out the functions, facilities and limitations and restrictions described at the Website|
|Documentation||such operating manuals, user instructions, technical literature, online help facilities, and other documentation and other related materials for aiding the use and application of the Software made available from time to time at the Website|
|Minimum Equipment||the hardware and software prerequisites to use the Software set out in the introduction above, and any computer equipment which the Licensor may recommend for use with the Software from time to time|
|Support Period||means the period during which the Support Services shall be provided determined in accordance with clause 7.4|
|Support Services||the software support services to be provided by the Licensor pursuant to clause 7.|
|Term||the duration of your permission to Use the Licensed Materials as specified in the Order|
|Use the Licensed Materials||Use the Software and Use the Documentation|
|Use the Software||to load and execute the Software in accordance with the terms of this Agreement|
|Use the Documentation||to store and read the Documentation in eye-readable form by an individual in conjunction with the use of the Software in accordance with the terms of this Agreement.|
Commencement and Services
This Agreement shall come into effect on the date that you first download and/or use the Software.
The Licensor hereby:
licenses you to Use the Software and Use the Documentation; and
undertakes to provide the Support Services for the Support Period in respect of the Software,
upon the terms and conditions hereinafter contained.
The Licensor hereby grants to you a non-exclusive and non-transferable licence to Use the Licensed Materials for the Term from the commencement of this Agreement subject to the terms and conditions hereinafter contained.
You agree that you are licensed to Use the Licensed Materials in accordance with the express terms of this Agreement but not further or otherwise.
In consideration of the grant of the Licence, you shall pay to the Licensor the single licence fee specified in the Order in accordance with the payment terms set out therein. You have no right to Use the Licensed Materials in the absence of payment, other than where the Order expressly states that it is for trial use of the Licensed Materials. In such cases, your Use of the Software will be limited to 7 days from the date of Activation unless otherwise specified in the Order. A trial entitles you to a single Activation only, and may not be moved to another Device.
This Agreement applies to each Licence Key purchased by you, and in the case of a trial, the Licence Key issued to you. You may not Use the Software other than when it is Activated.
The Licensed Materials and the Intellectual Property Rights vesting in the Licensed Materials and relating thereto are and shall remain the property of the Licensor at all times.
A Licence Key entitles you to:
use Available Activations with the Software up to the number of Activations granted in the Order;
Use the Software on Devices in object code form only;
move an Activation to another Device on up to 3 occasions.
You are licensed to Use the Licensed Materials for your own internal business purposes;
use a single instance of the Software at any one time for each Licence that you have purchased.
Use the Documentation for processing your own data and shall not permit any third party to use the Licensed Materials in any way whatsoever nor use the Licensed Materials on behalf of or for the benefit of any third party in any way whatsoever (including, without limitation, using the Licensed Materials for the purpose of operating a bureau service).
Any online service facilitated and/or arranged by the Licensor to operate in conjunction with the Software is governed by a separate agreement, and not by this Agreement.
You shall keep exclusive possession and control of all copies of the Licensed Materials and shall effect and maintain adequate security measures to safeguard the Licensed Materials from access or use by any unauthorised person. Such security measures shall be no less stringent than the measures which the Licensor uses to protect its own confidential information or reasonable measures, whichever is the greater. You are not entitled to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software or attempt to do so other than where such actions cannot be prohibited.
You may make up to 3 copies of the Software for operational security and back-up purposes but shall make no other copies thereof. Such copies shall remain the property of the Licensor and you shall ensure that all such copies bear the same proprietary notices as the original. The provisions of this Agreement shall apply to all such copies as they apply to the Licensed Materials.
The following termination provisions shall apply:
you may terminate the Licence at any time by giving at least 30 days’ prior written notice to the Licensor;
the Licensor may terminate the Licence forthwith by notice in writing to you if:
you commit any material breach of the terms of this Agreement and (in the case of a breach capable of remedy) shall have failed within 7 days after the receipt of a request from the Licensor to do so, to remedy the breach; or
you shall become insolvent or shall have a liquidator, receiver, administrator or administrative receiver appointed or any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), become bankrupt (as applicable) or a court of competent jurisdiction shall make an order to that effect.
forthwith upon termination of the Licence you will return the Licensed Materials and all copies of the whole or any part thereof to the Licensor or at the option of the Licensor shall destroy the same and certify to the Licensor that they have been destroyed. You shall also cause the Software to be erased from all equipment under in its possession or control and shall certify to the Licensor that the same has been done. Termination of the Licence shall not affect any accrued rights or liabilities of either party.
In the event that any enhancement or modification of the Licensed Materials is made or evolves in the performance of or as a result of this Agreement you agree that the same (and all Intellectual Property Rights therein) shall be the exclusive property of the Licensor unless otherwise agreed in writing by the Licensor.
The Licensor warrants to you that the Software when delivered to you shall provide the facilities and functions described in the Product Description and the Documentation. You acknowledge that the Software are of such complexity that they may have certain defects when delivered and you agree that the Licensor’s sole liability and your sole remedy in respect of a defect shall be for the Licensor to provide correction of documented program errors which the Licensor’s investigation indicates are caused by a defect in an unaltered version of the Software, and are not due to a defect or deficiency in, or a failure of, the equipment upon which the Software are operated or hardware or software not recommended or approved by the Licensor, or incorrect handling or employment of the Software by you. All warranties hereunder extend only to and are for the benefit only of you. The Licensor’s obligation to correct any such program errors shall cease at the end of the Support Period.
The Licensor makes no warranties or representations concerning the Minimum Equipment you may use in conjunction with the Licensed Materials.
The express terms of this Agreement are in lieu of all warranties conditions terms and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law.
You shall notify the Licensor if you become aware of any unauthorised use of the whole or any part of the Licensed Materials by any person.
You will permit the Licensor to check the use of the Licensed Materials and verify the performance of your obligations under this Agreement
Installation and acceptance
The Software shall be deemed to be accepted by you when it has been downloaded or received by you ready for installation, whichever is the earlier.
Upon request, the Licensor undertakes to provide training specified in the Order (if any) in the use of the Software for your staff in accordance with the Licensor’s standard scale of charges in force from time to time. Such training shall take place at the premises of the Licensor or its appointed agent, or remotely.
Subject to compliance by you with its responsibilities as specified in clause 7.2 the Licensor shall during the Support Period:
use its reasonable endeavours to correct any faults in the Software notified to it by you (but not to recover or reconstruct your computer records, corrupted or lost as a result of such faults);
provide you with all documentation which the Licensor reasonably deems necessary for the utilisation of any modified enhanced or replacement versions of or additions to the Software delivered to you by the Licensor from time to time; and
provide you with such technical advice by electronic mail only as shall be necessary to resolve your difficulties and queries in using the current version of the Software or refer to the Documentation for resolution by you.
use only the current version of the Software made available to you by the Licensor from time to time;
ensure that the Software are used on the equipment meets the Minimum Equipment specifications and use the Software in a proper and lawful manner by competent trained employees only;
notify each software fault to the Licensor as it arises and shall wherever possible supply the Licensor with a documented example of such fault;
co-operate fully with the Licensor in diagnosing any software fault;
make available to the Licensor free of charge all reasonable facilities and services which are required by the Licensor to enable it to provide the Support Services including without limitation memory dumps, telecommunications facilities, remote online access, reports and diagnostic data; and
not request permit or authorise anyone other than the Licensor to provide any support services in respect of the Software.
The Support Services do not include:
attendance to faults caused by using the Software otherwise than in accordance with the Documentation;
support or maintenance of software accessories, peripheral devices, computer hardware systems, connectivity or any other device and/or software not supplied by the Licensor;
services related to any online services which may be made available from time to time by the Licensor;
diagnosis or rectification of problems not attributable to the Software; or
correction of loss or damage caused directly or indirectly by operator error or omission and/or defect in the Licensed Materials, and any service which is provided by the Licensor as a result of any of the foregoing shall be subject to additional charges at the Licensor’s standard rates from time to time in force.
The Support Period shall commence on the date of Acceptance, shall continue for an initial period of 1 year and shall remain in force thereafter unless and until terminated by either party giving to the other not less than 1 month’ written notice of termination expiring on the last day of the said initial period or on any subsequent anniversary of such day but shall automatically terminate on the termination of the Licence. No refund of any part of the support charge shall be made on the termination of the Licence.
Support Services after the initial Support Period require payment of an annual support charge. No support services shall be provided while you are in default of any payment obligations or in breach of any term of this Agreement. The Licensor shall be entitled at any time and from time to time after the Support Period to make reasonable increases the support charge to accord with any change in the Licensor’s standard scale of charges by giving to you not less than 30 days’ written notice expiring on the date for payment of the next support charge from time to time.
Neither party shall export, directly or indirectly, any technical data or information acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, including the Export Control Act and United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
This Agreement is personal to you and you shall not assign sublicense or otherwise transfer any part of Agreement or any of its rights or obligations hereunder whether in whole or in part without the prior written consent of the Licensor. The Licensor shall be entitled to assign and/or novate any part of this Agreement to any third party in its sole discretion.
Notwithstanding anything else contained in this Agreement, neither party shall be liable for any delay in performing its obligations hereunder if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party and/or subcontractors).
Any such delay caused by the act or omission of the other party:
any costs or expenses arising from such delay shall be borne by the party incurring the same;
either party may if such delay continues for more than 2 weeks terminate this Agreement forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination;
both parties will in any event use reasonable endeavours to avoid or mitigate the impact of any event of force majeure and to recommence performance of their obligations under this Agreement as soon as reasonably possible.
The Licensor shall not be liable for any loss or damage sustained or incurred by you or any third party resulting from any defect or error in the Software.
The Licensor shall not be responsible for the maintenance, accuracy or good running of any version of the Software except the latest version thereof supplied to you.
Notwithstanding anything else contained in this Agreement but subject to clause 11.4 below the Licensor shall not be liable to you for loss (whether direct or indirect) of profits, business or anticipated savings or for any indirect or consequential loss or damage whatsoever even if the Licensor shall have been advised of the possibility thereof and whether arising from tort (including negligence), breach of contract, breach of statutory duty, or otherwise howsoever.
The Licensor does not exclude or limit liability for death or personal injury caused by the Licensor’s negligence or any other liability that cannot be excluded or limited by law.
Subject to clauses 11.3 and 11.4 above, where the Licensor is liable to you for negligence, breach of contract or any other cause of action arising out of this Agreement such liability shall not exceed a sum equal to the licence fee paid by you.
The Licensor will not be liable for any loss arising out of or in connection with any failure by you to keep full and up-to-date security copies of data and the computer programs you use, in accordance with best computing practice.
You shall indemnify the Licensor against all liabilities, claims, costs and expenses which the Licensor may be suffered arising from or connected to misuse of the Software and/or use of third party Intellectual Property Rights.
The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law. Nothing in this Agreement affects your statutory rights if you purchase the Software as a consumer within the meaning of the Consumer Rights Act.
This Agreement supersedes all prior agreements, arrangements and understandings between the parties in respect of the Software and the Documentation and constitutes the entire understanding between the parties concerning the subject matter of this Agreement (save that neither party seeks to exclude liability for any fraudulent pre-contractual misrepresentations on which the other party has relied.
You warrant to the Licensor that in entering into this Agreement it has not relied on any warranty representation or undertaking save as expressly set out in this Agreement. No waiver or amendment of any provision of this Agreement shall be effective unless made by a written instrument signed by both parties.
No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right power or remedy herein conferred upon or reserved for either party is exclusive of any other right power or remedy available to that party and each such right power or remedy shall be cumulative.
All notices which are required to be given hereunder shall be in writing and shall be sent to the email address used to place the Order, last known email address of the party or such other address in England as the recipient may designate. Any such notice may be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered if by first class post 48 hours after posting and if by email when dispatched.
Save as expressly provided in the attached Schedule all payments shall be made within 30 days after the date of the Licensor’s invoice therefor.
All sums payable under this Agreement are exclusive of Value Added Tax which you shall be additionally liable to pay to the Licensor.
If any sum payable under this Agreement is not paid within 7 days after the due date then (without prejudice to the Licensor’s other rights and remedies) the Licensor reserves the right to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 5 per cent above the base rate of Bank of England from time to time in force compounding monthly. Interest shall be paid on demand by the Licensor. For the avoidance of doubt any failure to make payment within 7 days after the due date shall constitute a material breach of contract.
In this Agreement:
reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended extended or re-enacted;
words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa; and
the headings to the Clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
The Licensor shall be entitled to engage the services of subcontractors or agents to perform any of its obligations hereunder.
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of England. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England.