Corey Holms End User License Agreement
IMPORTANT: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING THIS AGREEMENT WITH FAIRGOODS (“FAIRGOODS”), A DIVISION OF ANAGRAM, AN ALBERTA CORPORATION,. THIS IS A LEGAL AGREEMENT BETWEEN YOU (“YOU”) AND FAIRGOODS. BY CHECKING THE BOX LABELLED “I AGREE TO THE END USER LICENSE AGREEMENT” AND DOWNLOADING A PRODUCT (AS DEFINED BELOW) WHERE YOU PURCHASE A PRODUCT ONLINE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If You do not agree with the terms and conditions of this Agreement, and where You purchase a Product (as defined below) online, do not check the box labelled “I Agree to the End User License Agreement” and download the Product. This Agreement is between You and Fairgoods and is effective on the date that You checked the box labeled “I Agree to the End User License Agreement”.
For the Purposes of this Agreement, a “Product” is a typeface or any and all other media and content in any form provided to You by Fairgoods. Any reference in this Agreement to Product shall be to each individual Product and also to the Products as a whole. If You are entering into this Agreement in your capacity as an employee of an organization, You are entering into the license hereunder on behalf of your employer and the terms and conditions herein apply to both your employer and yourself as a representative of your employer, who shall herein be collectively referred to as “You”. If You cease to be employed by your employer for any reason, this Agreement will continue with your employer and You must enter into another Agreement with Fairgoods in order to continue to use the Product(s).
GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, Fairgoods hereby grants to You, a non-exclusive, non- transferable, limited license to:
- (a) use each Product provided to You by Fairgoods for your own purposes or for your direct clients, but only as part of:
- (i) advertising and promotional materials (including advertisements, brochures, books, company newsletters, company reports, film, packaging, presentations, television commercials and videos);
- (ii) online or other multimedia content (including computer games, online advertisement, streaming video, web broadcasts and web page design);
- (iii) broadcasts and theatrical exhibitions;
- (iv) any products or publications (electronic or print);
- (v) materials for non-commercial use, personal use, sample use and test use, including comps and layouts; and
- (vi) any other uses approved in writing by Fairgoods;
- provided however that:
- (vii) whomever uses the Product is the end user of the Product; and
- (viii) the Product is used in the manner specified in any documentation accompanying the Product (“Documentation”) and is not used in a manner contrary to the restrictions set out herein and in any Documentation;
- (b) make a reasonable number of copies of the Product for back-up purposes only, and for no other purpose or use whatsoever. The back-up copy may only be used if the original Product becomes defective, is destroyed or is otherwise irretrievable; and
- (c) create a digital library, network configuration, or similar arrangement to allow the Product to be used by employees and your direct clients provided however that the use of the Product is limited to no more than 5 such individual users, (5 users for type products). You must contact Fairgoods to obtain an additional license for each additional user prior to any use by such user.
Fairgoods does not grant to You any right to sublicense the Product and You agree that You will not grant any sublicenses of the rights granted herein. All rights not specifically granted above are retained by Fairgoods. This Agreement is a license and is not a sale. You may own the media on which the Product is stored, but Fairgoods at all times retains ownership of the Product and all rights in the Product, which are protected by international copyright laws, international treaty provisions and other applicable international laws. You hereby acknowledge that Fairgoods is the exclusive owner or licensee of the Products and any and all intellectual property rights in and to the Products.
RESTRICTIONS ON LICENSE
You shall not:
- (a) make any use of a Product in whole or in part that is not expressly provided for in this Agreement;
- (b) assign, convey, dispose of, gift, lease, license, rent, sublicense, sell, or otherwise transfer any of the rights granted to You under this Agreement, although You may sell or license derivative works incorporating the Products in accordance with the uses permitted under paragraph (a) of the “Grant of License” section above;
- (c) dis-assemble, de-compile, unlock, reverse engineer or otherwise translate any software included as part of a Product or any component thereof, or copy by programming the functions of the software included as part of a Product or any component thereof, or make any attempt to do any of the foregoing;
- (d) modify or adapt any software included as part of a Product, nor merge it into any other computer program;
- (e) use a Product in any template or application, whether online or not, with the purpose of creating multiple impressions of a Product, including but not limited to: website design templates, presentation templates, electronic greeting cards, business cards, e-business cards, or any other electronic or printed matter; and
- (f) use, make available for use, transfer, license, sell or otherwise distribute a Product in such a manner that a person can extract or access the Product as an electronic file, including posting a Product online in a downloadable format, posting a Product on any electronic bulletin board, web site or using a Product in electronic greeting cards. For clarity You may, in accordance with the uses permitted under paragraph (a) of the “Grant of License” section above use a Product as part of a web page design provided however that it cannot be downloaded separately or in a format that can be used by a visitor to the website.
OBLIGATIONS WITH LICENSE
- (a) comply with the font embedding restrictions set out in Appendix “A” attached hereto;
- (b) retain the copyright notice of Fairgoods and its licensors or content providers and Fairgoods’ Product identification code as displayed on the Product and as included as part of the electronic file;
- (c) use the Product in compliance with all applicable laws, including, but not limited to, laws and regulations relating to copyright and moral rights;
- (d) immediately provide to Fairgoods the full particulars of any claim or threatened claim by a third party in respect of all or any part of a Product; and
- (e) provide a credit next to any Product used in an editorial manner as follows: Copyright Fairgoods.
DISCLAIMER OF WARRANTY
Fairgoods warrants, if applicable, the downloaded file or other media that Fairgoods provides to You, to be free from defects in material and workmanship for ninety (90) days from the date of purchase. The exclusive remedy for a breach of the foregoing warranty is the replacement of the downloaded file or other media. OTHERWISE, ALL PRODUCT AND MEDIA PROVIDED TO YOU BY FAIRGOODS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND. FAIRGOODS MAKES NO REPRESENTATIONS WITH RESPECT TO ANY PRODUCT OR MEDIA, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS OF ANY KIND, EXPRESS AND IMPLIED, REGARDING THE PRODUCT OR MEDIA, INCLUDING WITHOUT LIMITATION, ALL REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS REGARDING NON-INFRINGEMENT OR OTHER NON-VIOLATION OF RIGHTS, SUITABILITY, QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. FAIRGOODS MAKES NO REPRESENTATIONS WITH RESPECT TO ANY PRODUCT AND MAKES NO WARRANTIES WITH REGARD TO THE USE OF NAMES, TRADEMARKS, TRADE DRESS, REGISTERED, UNREGISTERED OR COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY PRODUCT AND FAIRGOODS GIVES NO WARRANTY AS TO THE ACCURACY OR AUTHENTICITY OF THE PRODUCT OR ANY DESCRIPTION OF THEM OR THE IDENTIFICATION OF PERSONS, OBJECTS OR SCENES APPEARING IN THEM AND SHALL NOT BE LIABLE TO YOU FOR ANY OF THE FOREGOING, AND YOU MUST SATISFY YOURSELF THAT ALL THE NECESSARY RIGHTS OR CONSENTS REGARDING ANY OF THE ABOVE, AS MAY BE REQUIRED FOR REPRODUCTION, HAVE BEEN OBTAINED. Some jurisdictions do not permit the exclusion of implied warranties, and so the foregoing may not apply to You.
LIMITATION OF LIABILITY
IN NO EVENT SHALL FAIRGOODS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES FOR ANY BREACH OF IT’S OBLIGATIONS OR WARRANTIES, EXPRESS OR IMPLIED RESULTING FROM THIS AGREEMENT (INCLUDING LOSS OF PROFITS OR BUSINESS, LOST OPPORTUNITY OR LOSS OF BUSINESS REPUTATION), EVEN IF FAIRGOODS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FAIRGOODS’ ENTIRE LIABILITY AND YOUR ENTIRE REMEDY FOR ANY DAMAGES OR LOSS YOU MAY SUFFER FROM ANY CAUSE WHATSOEVER, WHETHER THE ACTION IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) SHALL BE LIMITED TO THE SALES VALUE OF THE PRODUCT. YOU ACKNOWLEDGE THAT THE PRODUCT PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT.
TERM AND TERMINATION
The license granted herein is a perpetual license that will only terminate as set out below. This Agreement will terminate automatically and without notice from Fairgoods if You breach, or fail to perform or observe, any covenant, condition or provision of this Agreement. Fairgoods reserves the right at any time to terminate this Agreement for any reason whatsoever or to terminate this Agreement in respect of a particular Product or Products, provided however, that Fairgoods agrees to replace the particular Product or Products or other media affected by such termination with a replacement Product or Products or other media.
Upon termination of this Agreement, or this Agreement in respect of a particular Product or Products, You agree to:
- (a) cease all use of the Products (or the particular Product or Products) and any downloaded files or other media containing such Products provided to You by Fairgoods;
- (b) return all downloaded files or other media provided to You containing the Products (or the particular Product or Products);
- (c) destroy or delete all Products (or the particular Product or Products) stored on any premises, computer, hard drive, digital media or other facilities or storage devices (electronic or physical), including all copies of the Products, downloaded file or other media;
- (d) ensure that your clients and customers:
- (i) cease all use of the Products (or the particular Product or Products);
- (ii) destroy, delete or return to Fairgoods all Products, retained or stored on any premises, computer, hard drive, digital media or other facilities or storage devices (electronic or physical), including all copies of the Products;
You hereby agree to indemnify, defend, save and hold Fairgoods and its licensors and contributors and its resellers, harmless from and against any liability, cost, fee, expense, loss, judgement, claim or damage claimed by any third party (including reasonable legal fees) arising or resulting from any breach, violation of, or failure to fulfill, any representation, warranty, covenant or agreement made herein by You or arising out of any use of a Product provided to You, including from:
- (a) the use of a Product in breach of this Agreement;
- (b) the use of a Product otherwise than in accordance with the rights granted to You herein;
- (c) the use of a Product in such a manner that violates or infringes any right of another person, including the use of a Product without appropriate model releases, consents or waivers of moral rights, as may be required or desirable or necessary for such use; and
- (d) the unauthorised use by any third party to which You may have supplied a Product.
You shall not assign this Agreement in whole or in part without Fairgoods’ approval. Fairgoods may assign this Agreement without your approval.
DIGITAL FILE CONDITION
You are responsible for examining any digital file in respect of a Product before effecting reproduction. Accordingly, Fairgoods and its licensors or content providers are not responsible for any damage resulting from any defect or alleged defect in any digital file or its caption or in any way from its reproduction.
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, without regard to the conflict of law rules applicable therein, and shall be treated in all respects as an Alberta contract. The parties to this Agreement hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Alberta and all courts competent to hear appeals therefrom. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and this Agreement will not be governed by that Convention.
This Agreement supersedes all prior representations, arrangements, negotiations, understandings and agreements between the parties, both written and oral, relating to the subject matter hereof and sets forth the entire, complete and exclusive agreement and understanding between the parties hereto relating to the subject matter hereof; no party has relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in this Agreement. Any descriptions of the Products and any written material used to facilitate or promote the Products are for the sole purposes of identification and are not to be construed as warranties.
AMENDMENT AND WAIVER
This Agreement may only be amended by written agreement. No waiver or consent by Fairgoods of or to any breach or default of this Agreement by You will be effective unless evidenced in writing. No waiver or consent effectively given as aforesaid will operate as a waiver or consent of or to any other right or other or further breach or default in relation to the same or any other provision of this Agreement.
Such provisions of this Agreement that, by their nature, would be expected to survive termination of this Agreement shall survive any such termination.
In the event of any breach of this agreement by You, You agree to be responsible for the reasonable legal fees of Fairgoods and its licensors and contributors in the event that Fairgoods or its licensors or contributors are required to enforce their rights by commencing an action under these provisions.