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 and associated services used in conjunction with Color Finale Pro “Color Finale Connect Service” (“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 10.5.x (Catalina) and Final Cut Pro 10.4.9. All computers participating in a Connect Service session must satisfy these requirements.

IMPORTANT NOTICE:

Please should print this EULA for and keep it in a safe place for your future reference.

  1. Definitions

    1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

Connect Service connectivity services to enable online communication and remote control of Color Finale Pro instances, in real-time between paid up licensees of Color Finale Pro.

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 above in compiled form, including any modified or enhanced versions thereof which may be made available by the Licensor to you from time to time

Licensed Materials the Software and the Documentation

the Licence the licences granted pursuant to clause 3

Product Description the product description of the Software which sets out the functions, facilities and limitations and restrictions described at the Website

Prohibited Content any material in any media that does not comply with applicable law or regulation or industry codes; is offensive or indecent, depicts violence or is otherwise threatening or abusive; is for any organisation whose principal business includes the sale of tobacco related products or pornographic material; or in which in the opinion of a reasonable person encourages, in whatever manner, behaviour which promotes disparaging views or behaviour relating to an individual or groups’ colour, race nationality, ethnic or national origins, sex, sexual orientation, marital status, religion, age or disability

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/or any computer equipment which the Licensor may recommend for use with the Software from time to time

Support Period the period during which the Support Services shall be provided determined in accordance with clause 7

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, and “Use of the Licensed Materials” shall be construed accordingly

Use the Software to load and execute the Software and the services made available by it in accordance with the terms of this Agreement, and “Use of the Software” shall be construed accordingly

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.

Website https://colorfinale.com

  1. Commencement and Services

    1. This Agreement shall come into effect on the date that you first download and/or use the Software.

    2. All Use of the Licensed Materials shall be governed by the terms of this Agreement.

    3. The Licensor hereby:

      1. licenses you to Use the Software and Use the Documentation; and

      2. undertakes to provide the Support Services for the Support Period in respect of the Software,

upon the terms and conditions hereinafter contained.

  1. Licence

    1. 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.

    2. You agree that you are licensed to Use the Licensed Materials in accordance with the express terms of this Agreement and not further or otherwise.

    3. In consideration of the grant of the Licence, you shall comply with the terms of the Licence at all times. You have no right to Use the Licensed Materials in the absence of payment for Color Finale Pro and upon such further terms as may be specified in the Order.

    4. The Licensed Materials, the Intellectual Property Rights vesting in the Licensed Materials and relating thereto are and shall remain the property of the Licensor.

    5. You are licensed to:

      1. Use the Licensed Materials for your own internal business purposes;

      2. use a single instance of the Software at any one time for each Licence that you have been granted;

      3. Use the Licensed Materials for the purposes to receive Connect Services and not for any other purpose;

      4. Use the Licensed Materials for processing your own data and shall not permit any third party to use the Licensed Materials in any way whatsoever, including without limitation Use the Licensed Materials on behalf of or for the benefit of any third party in any way whatsoever.

    6. 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.

    7. 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.

    8. The following termination provisions shall apply:

      1. you may terminate the Licence at any time by giving notice in writing to the Licensor, provided that you have irretrievably deleted all instances of the Software and Documentation prior to giving such notice;

      2. the Licensor may terminate the Licence forthwith by notice in writing to you if:

        1. you commit any material breach of the terms of this Agreement; or

        2. 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.

      3. 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 irretrievably destroy the same and certify to the Licensor that they have been destroyed. You shall also cause the Software and Documentation to be erased from all equipment under in your 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.

    9. 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.

    10. The Licence is conditional upon the continuation of transmission of anonymous usage data relating to the Connect Service (“Anonymous Data”). Anonymous Data includes:

      1. Computer configuration information;

      2. Software features usage statistics; and

      3. Color metadata usage statistics by third party video applications.

  2. Warranties

    1. The Licensee shall not:

      1. introduce malware to the Connect Services or any other software or device whatsoever which interferes with or alters the operation of the Software for the purposes for which it was designed, namely online conferencing services;

      2. use the Software to process Prohibited Content or communicate Prohibited Content;

      3. act contrary to any law applicable to use of the Connect Services in any jurisdiction in which the Software or Connect Services is located and/or used;

      4. attempt to improve or alter the Software or its operation;

      5. remove, modify or obscure any aspect of the Software or Connect Services and shall not hold out the Software and/or the Connect Services in a manner which may mislead any third party as to the origin or supplier of the Software or the Connect Services; and

      6. use the Licensed Materials or the Connect Services to monitor performance, functionality of the Software or any other software licensed by the Licensor, or for any competitive purpose whatsoever.

    2. The Licensor warrants 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 is of such complexity that it 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 in its sole discretion 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, or provide you with a refund. All warranties hereunder extend only to and are for the benefit only of the Licensee. The Licensor’s obligation to correct any such program errors shall cease at the end of the Support Period.

    3. The Licensor makes no warranties or representations concerning the Minimum Equipment you may use in conjunction with the Licensed Materials.

    4. 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.

    5. 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.

    6. You will permit the Licensor to check the use of the Licensed Materials and verify the performance of your obligations under this Agreement

  3. Installation and acceptance

    1. 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. By installing the Software you expressly request commencement of the Connect Services.

  4. Training

    1. 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.

  5. Support Services

    1. The Licensor may provide Support Services in its sole discretion upon request made in writing, subject to any conditions which the Licensor see fit from time to time.

  6. Export Control

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.

  1. Assignment

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.

  1. Force majeure

    1. 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).

    2. Any such delay caused by the act or omission of the other party:

      1. any costs or expenses arising from such delay shall be borne by the party incurring the same;

      2. 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;

      3. both parties will in any event use reasonable endeavours to avoid or mitigate the impact of any event of force majeure and to re-commence performance of their obligations under this Agreement as soon as reasonably possible.

  2. Liability

    1. The Licensor shall not be liable for any loss or damage sustained or incurred by you or any third party resulting from any defect, error in the Software or failure to function in the manner you may expect.

    2. 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.

    3. 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.

    4. 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.

    5. 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 or connected to this Agreement such liability shall not exceed a sum equal to the licence fee paid by you.

    6. 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.

    7. You shall indemnify the Licensor against all liabilities, claims, costs and expenses which the Licensor may suffer arising from or connected to misuse of the Software and/or use of any third party owned Intellectual Property Rights.

    8. 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.

    9. Notwithstanding anything else in this Agreement, the Licensee acknowledges that the continuity of the Connect Services is dependent upon continuity of services supplied by third parties to the Licensor and to the Licensee. The Licensor shall have no liability to the Licensee or any other person for failure, interruption, modification, and/or cessation of such services.

  3. General

    1. 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.

    2. 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. The Software and the Connect Service, supplied together and/or separately with any other product, content or services of the Licensor in connection with this Agreement and/or the Color Finale Licence are supplied on an “as is” and “ as available ” basis, without warranty, term or condition of any kind, whether express, implied, statutory or otherwise, including any warranty, term or condition of satisfactory quality, fitness for a particular purpose, and any warranties, terms or conditions arising out of course of dealing. The Licensor does not warrant the Software and/or Connect Services will meet Client’s requirements, be error free, uninterrupted, virus free or secure. No waiver or amendment of any provision of this Agreement shall be effective unless made by a written instrument signed by both parties.

    3. 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.

    4. 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.

    5. 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.

    6. All sums payable under this Agreement are exclusive of Value Added Tax which you shall be additionally liable to pay to the Licensor.

    7. 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.

    8. In this Agreement:

      1. 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;

      2. 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

      3. the headings to the Clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

    9. The Licensor shall be entitled to engage the services of subcontractors or agents to perform any of its obligations hereunder.

    10. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

    11. 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.

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