Non-Exclusive License Agreement
Effective: August 15, 2019
PLEASE Read the following Terms of the zenColor® Connect Webapp (“ZCCW”) License Agreement (“Agreement”) carefully before installing, accessing or otherwise using ZCCW within a software application, website, or product you create or a service you offer. These Terms (“Terms”) govern your (“Licensee”) use of the ZCCW provided by zenColor Corporation (“zenColor” or “we”) on the Platform selected by the Licensee based on a subscription plan selected by the Licensee (collectively, the “Services”).
The Services enable Licensee to install, access or otherwise use the ZCCW through a web-browser or within a software application, website, or product you create or a service you offer (collectively “Licensee’s Applications”) to enable user-friendly access to the zenColor backend applications, additional fees may apply to access or use certain backend applications. The Licensee may acquire the Services on a time-limited subscription basis with automatic annual renewals, subscription/incremental fees paid monthly.
Acceptance of Terms
zenColor® makes the Services available to Licensee subject to these Terms. These Terms govern Licensee’s access to and use of the Services. Licensee’s access to and use of the Services is conditioned on Licensee’s acceptance of these Terms. When Licensee access or use the Services, Licensee represent and warrant that Licensee have read and understood these Terms, Licensee represent and warrant that Licensee has the authority to accept these Terms on behalf of Licensee (an individual and/or a company, as applicable) and Licensee acknowledge that this is a binding legal agreement between Licensee and zenColor. This Agreement becomes effective immediately upon commencement of Licensee’s use of the Services, including but not limited to installation, access and/or use of ZCCW. We reserve the right to modify these Terms from time to time without notice to Licensee. Licensee acknowledges and agrees that it is Licensee’s responsibility to review these Terms periodically and to be aware of any modifications. The date of last modification (the “Effective Date”) preceded these Terms. Modifications are effective when posted, and Licensee’s continued use of the Services after the Effective Date constitutes Licensee’s acceptance of and agreement to be bound by the Terms as modified.
Grant of Rights/Limited License
Pursuant to these Terms, zenColor grants to Licensee a non-exclusive, non-transferable, revocable, and limited right and license to install ZCCW and use the Services to develop, test and support Licensee’s Application. This right and license is conditioned on Licensee’s continued compliance with these Terms.
Licensee may only use the Service on an authorized application/device that the Licensee owns. Licensee may not rent, lease, lend, sell, transfer, redistribute or sublicense the ZCCW and, if Licensee seeks to sell or otherwise transfer the ZCCW to another desk/device, the Licensee must first receive prior written consent from zenColor before completing such transfer.
zenColor shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the Services and/or API any suggestions, enhancement requests, recommendations or other feedback zenColor receives from Licensee.
The zenColorCode® (ZCC) Universal Digital Color Standard and ZCC® Swatch Library
As part of the Services, zenColor provides Licensee with access to the zenColorCode® Swatch, Universal Digital Color Standard and ZCC® Swatch Library, for use in connection with the Services. Licensee hereby acknowledges and agrees (in addition to all other terms and conditions elsewhere in the Terms) that:
The zenColorCode® Universal Digital Color Standard and ZCC® Swatch Library is licensed and not sold;
Licensee’s use of the zenColorCode® Universal Digital Color Standard and ZCC® Swatch Library is allowed strictly in conjunction with the Services, including any required applications and/or devices to use the Service expressly authorized by zenColor, and not with any other application or devices; and
Licensee expressly agree not to make copies of the ZCCW, zenColorCode® Universal Digital Color Standard and ZCC® Swatch Library onto another medium or into memory or share any part thereof unless as part of the execution and use of the Services.
The activity that occurs via Licensee’s account is the Licensee’s responsibility. Please notify us immediately if Licensee becomes aware of any unauthorized use of Licensee’s account. Licensee may not (a) share Licensee’s account information with anyone except with an authorized account administrator or (b) use another person’s account. Licensee’s account administrator may use Licensee’s account information to manage Licensee’s use and access to the Services.
Restrictions on Use
In order to use and access the ZCCW, Licensee muse obtain ZCCW credentials by becoming a subscriber. Licensee may not share its ZCCW credentials with any third party, shall keep such ZCCW credentials and all login information secure, and shall use the ZCCW credentials as Licensee’s sole means of accessing the ZCCW.
Licensee’s Applications shall not substantially replicate products or services offered by zenColor. Licensee’s Applications may not use or access ZCCW or Services in order to monitor the availability, performance or functionality of the ZCCW or Services or for any similar benchmarking purposes.
Licensee shall not, under any circumstances, through Licensee’s Applications or otherwise, repackage or resell the Services, or any part thereof, or ZCCW.
To ensure that we provide the best service to all our users, the Licensee agrees to use the Services in a manner consistent with the following restrictions. Licensee’s use of the Services is subject to all applicable local, state and federal laws and regulations, including but not limited to:
compliance with The Children’s Online Privacy Protection Act (“COPPA”);
illegal activities, such child pornography, gambling, piracy, violating copyright, trademark or other intellectual property laws;
accessing or authorizing anyone to access the ZCCW from an embargoed country;
threatening, stalking, defaming, defrauding, degrading, victimizing or intimidating anyone for any reason; and
violating applicable privacy laws and regulations.
Licensee may not engage in the following prohibited activities while using the Services:
Make use of the Services for any purpose not expressly approved by zenColor in writing;
Interfere or attempt to interfere in any manner with the functionality or proper working of any system used to provide the Services, or with another individual’s use of the Services (including without limitation by stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way);
Access or use the Services or Licensee’s account to breach security of another account or attempt to gain unauthorized access to another network or server;
Enable or allow others to use the Services or content using Licensee’s account information;
Copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify or create derivative works based, in whole or in part, on the ZCCW and any system used to provide the Services, any updates, or any part thereof (except as and only to the extent that (i) such restriction is prohibited by applicable law, or (ii) such use is permitted by the licensing terms governing use of any open-sourced components included in ZCCW and any application, programs and system utilized by the Services (hereinafter the “zenColor System”);
Access, tamper with, or use non-public areas of the ZCCW, our computer systems, or the technical delivery systems of our providers;
Access or search or perform data analysis of (or attempt to access or search or preform data analysis of) the zenColor System by any means (automated or otherwise, including but not limited to, access or search using ZCC, reference numbers, text tags, is strictly prohibited without additional license(s) from zenColor) other than through currently available, published interfaces that are provided by zenColor;
Forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the ZCCW to send altered, deceptive or false source-identifying information;
Interfere with or disrupt (or attempt to interfere with or disrupt) access to the services of any user, host or network, including sending a virus, overloading, flooding, spamming or mail-bombing the services, servers or networks connected to or which can be access via the ZCCW, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the services, servers or networks connected to or which can be access via the ZCCW;
Upload, share, distribute or otherwise transmit any material that contains viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, limit or interfere with the functionality of any software, hardware or telecommunications equipment, or to damage or obtain unauthorized access to any data or other information of any third party;
Upload, share, reproduce, distribute or transmit any content, information or material that is protected by copyright or any other intellectual property right without permission of the owner of such rights;
Make use of the Services including without limitation by uploading or sharing content that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening or hateful.
▪ Impersonate any person or entity, or falsely state or otherwise misrepresent Licensee’s affiliation with a person or entity;
▪ Engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages; and
▪ Place advertisement of any products or services except with the prior written approval of zenColor.
We reserve the right to enforce, or not enforce, these restrictions in our sole discretion, and these restrictions do not create a duty or contractual obligation for us to act in any particular manner. We reserve the right to terminate Licensee’s account without prior notice to Licensee, at any time and at our sole discretion, for violating any of the above terms. The Licensee acknowledges that we will cooperate with investigations of violations of systems or network security, including cooperating with law enforcement authorities in investigating suspected criminal violations.
Transmission and Storage of Content
Electronic communications using the ZCCW may not always be encrypted. The Licensee acknowledges that there is a risk that data, including electronic communications, and personal or corporate data, may be accessed by unauthorized third parties when communicated between the Licensee and zenColor or between Licensee and other parties.
User Data that is uploaded to the ZCCW, including images for color extraction and data files for conversion into zenColorCode (ZCC) are stored on the zenColor’s server(s) for a maximum duration of thirty (30) days, after which they are automatically deleted. Subscription related data for administering the subscription, processing and managing payments is stored in a PCI compliant manner.
The Licensee is solely responsible of the collection of User Data, the specification of the processing of such data, including the processing performed by zenColor, and the use of the User Data.
The Licensee guarantees that the User Data collection and processing are compliant with the relevant laws and regulation, including but not limited to compliance with COPPA, and that it has obtained any and all required authorization and performed any and all required step for collecting, storing and processing the User Data.
The Licenses shall hold zenColor harmless of any claim of any third party or government agency pertaining to the collection, storage and processing of User Data, provided that zenColor complies with the obligation set forth hereunder.
zenColor, thus acting as a Processor, may process any user Data on behalf of the Licensee, the latter thus acting as a Controller.
In processing any User Data, if any, on behalf of Licensee, zenColor will process the User Data and shall:
fairly and lawfully perform its role as processor by processing the User Data at all times in accordance with the relevant data protection law and in the manner specified in this Agreement;
implement appropriate and reasonable technical and organizational measures to safeguard the relevant User Data from unauthorized or unlawful processing or accidental loss, disclosure, destruction or damage (except after the thirty (30) days deadline for deletion), where such measures shall ensure a level of security appropriate to the harm, damage or distress that might result from unauthorized or un lawful processing or accidental loss, destruction or damage and to the nature of the User Data to be protected;
ensure that all staff in its organization are made aware of, and act in accordance with its obligations under the instant clause regarding the security and protection of the User Data;
ensure that each of its agents and subcontractor (where relevant) are made aware of the safeguarding obligations under the instant clause of the User Data;
not disclose the User Data whether directly or indirectly to any person, group, firm or company of otherwise without the express prior written consent of the Licensee except to those of its staff, agent and subcontractors who are engaged in the processing of the User Data and are subject to the obligations of the instant clause or except as may be required by any law or regulation;
not process or transfer the User Data outside of the US except with the express prior written authorization of the Licensee and not before having taken the necessary steps of such a transfer as may be required by law;
only extract, transmit and process such User Data as is appropriate for providing the Services under this Agreement;
ensure that all its computers, servers and storage means that will be used for storing, sending and receiving the User Data collected and provided by the Licensee are appropriately protected against unauthorized use by encryption/passwords and appropriate firewalls and anti-virus packages (with regular and frequent updates being applied);
ensure that User Data transferred by telecommunication network are sent over an encrypted network;
ensure that all zenColor staff are appropriately vetted and are assigned unique identifiers and maintain a comprehensive and complete audit trail detailing which staff have accessed which User Data provided by the Licensee and from where;
ensure that its servers or data centers on which User Data are stored are compliant with appropriate security standards, and that non-authorized persons are prevented from entering the premises where User Data are stored or processed;
inform the Licensee immediately upon becoming aware that User Data has been used in a manner which is not expressly permitted;
inform the Licensee immediately upon becoming aware of any actual or suspected or threatened incident of accidental or unlawful loss, destruction, alteration, unauthorized or accidental disclosure or any other security breach;
provide to the Licensee, at least once a year a report reflecting the security status, vulnerability scanning and penetration testing.
If zenColor receives any complaint, notice or communication which alleges or refers to a non-compliance with any data protection law by zenColor, it shall promptly notify the Licensee in writing and shall take such steps as are necessary, including such steps as may reasonably be requested by the Licensee, to remedy the non-compliance and prevent its recurrence.
Third Party Sites and Information
The Services may require links to other Internet sites or include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These sites are not under our control, and Licensee acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of links or references is provided merely as a convenience and does not imply endorsement of, or association with, any third-party site or party. We make no representations concerning the content, accuracy, security or privacy of any third-party site.
Ownership of ZENCOLOR® CONNECT WEBAPP
The ZCCW encompasses the intellectual property of and is owned by zenColor. The ZCCW, including its programming, design and operation, are protected by various laws and international treaty provisions. zenColor does not grant Licensee any ownership interest in the zenColor System and/or the intellectual property embodied therein. Except as expressly stated herein, zenColor does not grant Licensee any right or license to the intellectual property associated with or embodied in the zenColor System. All rights not expressly granted are reserved by zenColor.
Nothing contained in the zenColor System should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any image or trademark displayed in the zenColor System without the written permission of zenColor or such third-party owner of images and trademarks displayed by the zenColor System. Except as expressly stated herein, Licensee’s use of the images and trademarks displayed by the zenColor System, or any other content associated with the zenColor System, is strictly prohibited.
Fees and Payments
The Services require the Licensee to purchase a Subscription in order to access all or part of such Service. zenColor currently offers the Subscription for minimum of two (2) years, with a monthly Subscription Fee based on the number of ZCCW components installed on or accessed from Licensee’s applications and/or devices. The monthly Subscription Fee comprises a Minimum Monthly Fee based on a plan selected by Licensee (hereinafter the “Licensee Plan”) and a Monthly Incremental Fee for number of monthly applications and/or devices in excess of the devices/desks allotted in the Licensee Plan. The number of monthly applications/devices for each Licensee is exclusively determined according the zenColor Digital Rights Management (DRM) system, irrespective of any other consideration.
Licensee’s Subscription renews automatically for one year unless canceled within thirty (30) days before end of the current term.
If the Licensee misses a payment of the monthly Subscription Fee for any reason, the Licensee shall have ten (10) days to cure. If the Licensee fails to cure the missed payment within the ten (10) cure period, the License is terminated and Licensee’s access to the Services is terminated. ANY ISSUE THAT MAY ARISE FROM THE TERMINATION ARE STRICTLY THE RESPONSIBILITY OF THE LICENSEE. Notwithstanding the foregoing, if the Licensee wishes to continue with the Services after the Termination, the Licensee must pay $2,500 service fee in advance to reactivate the Services.
You are responsible for paying all taxes levied in connection with your use of the Services. Your ability to access the Services may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, credit card fees, foreign exchange fees, etc.) which are solely your responsibility.
Term and Termination
Assuming full compliance with all the Terms of this Agreement, including but not limited to the payment of the Monthly Fees, the Licensee’s Subscription is valid for two (2) years after its execution of this Agreement and the subscription renews automatically for one (1) year after end of each subscription period unless expressly terminated by Licensee at least thirty (30) days prior to the end of the current subscription period.
zenColor may suspend or terminate Licensee’s access to the Services or cease providing Licensee with all or part of the Services at any time for cause, without any liability to Licensee, if zenColor reasonably believes that (i) the Licensee breached the Terms of this Agreement which is incapable of remedy, (ii) Licensee create risk or possible legal exposure, or (iii) the Licensee breached the Terms of this Agreement and fails to remedy the breach within thirty (30) days after receiving a notice of the breach from zenColor, or (iv) the Licensee becomes insolvent, becomes involved in any liquidation or termination of its business, is adjudicated a bankrupt, effects an assignment for the benefit of creditors or invokes the provisions of any law for the relief of debtors.
Notwithstanding the foregoing, zenColor may suspend or terminate Licensee’s access to and use of the Services or cease providing Licensee with all or part of the Services at any time, with thirty (30) days prior written notice and without any liability to Licensee, if zenColor reasonably believes that our provision of the Services to Licensee is no longer commercially viable.
Upon termination of this Agreement, the Licensee shall make no further use of the Services and delete any access to the ZCCW, and any copy of software associated with zenColor System.
zenColor shall not be liable to Licensee or any third party should zenColor exercises such right of termination as set forth herein, in whole or in part.
ANY ISSUE THAT MAY ARISE FROM THE TERMINATION ARE STRICTLY THE RESPONSIBILITY OF THE LICENSEE. Notwithstanding the foregoing, if the Licensee wishes to reconnect or continue with the Services after Termination, the Licensee must pay $2,500 service fee in advance to reconnect or reactivate the Services.
A Party (the “Affected Party”) shall not be liable or responsible of any failure to perform or delay in performance of any of its obligation under this Agreement to the extent that such failure is caused by a force majeure event.
The Affect Party shall:
notify the other Party of the occurrence of a Force Majeure event as soon as reasonably practicable and no later than five (5) days after the beginning of such Force Majeure event; and
take all reasonable steps to bring the Force Majeure event to a close and to mitigate the effects of the Force Majeure event.
If the Force Majeure event lasts more than thirty (30) days, the other Party may terminate this Agreement pursuant to Termination clause of this Agreement.
Disclaimer of Warranties
USE OF THE ZCCW AND SERVICES ARE UNDERTAKEN AT LICENSEE’S OWN RISK AND WITH LICENSEE’S AGREEMENT THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
THE ZCCW AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON- INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE ZCCW AND SERVICES WILL MEET LICENSEE’S REQUIREMENTS; (B) THE OPERATION OF THE ZCCW AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ZCCW WILL BE EFFECTIVE, ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES OR INFORMATION PURCHASED OR OBTAINED BY LICENSEE FROM US OR OUR AFFILIATES WILL MEET LICENSEE’S EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM ZENCOLOR OR THROUGH THE USE OF THE SERVICES SHALL CREATE ANY WARRANTY REGARDING THE SERVICES NOT EXPRESSLY STATED IN THIS AGREEMENT.
WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THE SERVICES, AND LICENSEE UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT LICENSEE’S OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS OR INFORMATION OBTAINED FROM A THIRD PARTY ON OR THROUGH THE ZENCOLOR API AND/OR SERVICES ARE PROVIDED SOLELY BY SUCH THIRD PARTY. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENCOLOR SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER INCURRED DIRECTLY OR INDIRECTLY, INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOSS OF USE, DATA, PROFITS OR GOODWILL OR OTHER INTANGIBLE LOSSES. THE LIMITATIONS OF THIS SECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICE OR OF ANY SITES REFERENCED OR LINKED THROUGH THE SERVICES, AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
LICENSEE’S EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THESE TERMS AND LICENSEE’S USE OF THE SERVICES SHALL BE LIMITED TO THE AMOUNT LICENSEE PAID US FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY OR, IF NO AMOUNTS WERE PAID TO US DURING SUCH SIX (6) MONTH PERIOD, THEN ONE HUNDRED DOLLARS ($100.00).
Upon a request by us, Licensee agrees to defend, indemnify and hold us harmless from all liabilities, claims, and expenses, including attorney’s fees, made by any person that arise from Licensee’s use or misuse of the Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee will cooperate with us in asserting any available defenses.
Governing Law and Jurisdiction
The laws of the State of Florida will govern these Terms and any actions related to the use of the Services (without regard to or application of its conflict of law provisions). Unless a dispute would be governed by an applicable arbitration clause, all claims, legal proceedings or litigation arising in connection with the use of the Services will be brought solely in the Eleventh Judicial Circuit Court of Florida, and the United States District Court for the Southern District of Florida. Licensee consents and hereby submits to the exclusive personal jurisdiction and venue of such courts and waive any objection as to inconvenient forum.
ZCCW and other software available on or through the Services may be subject to United States Export Controls. The Licensee may not use or otherwise export or re-export the ZCCW and other software except as authorized by United States law and the laws of the jurisdiction in which the software was obtained. By downloading or using the ZCCW and related software, the Licensee represents and warrant that the Licensee is not located in, under the control of, or a national or resident of any a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Licensee is not listed on any U.S. Government list of prohibited or restricted parties.
These Terms, including referenced materials, constitute the entire Agreement between the Licensee and zenColor with respect to the Licensee’s access to and use of the Services, and supersedes any prior or contemporaneous agreements and communications.
Waiver and Severability
If any provision of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Any failure by us to enforce or exercise any provision of these Terms or related rights shall not constitute a waiver of that right or provision.
Licensee may use the ZCCW and the Services only if Licensee is (a) over 13 years old and (b) permitted by applicable law to enter into a binding contract.
zenColor® Trademarks and Copyrights
ZENCOLOR®, ZENCOLORCODE®, ZCC®, ZENCOLOR® CONNECT, ZENCOLOR® CLICK FILTER, zenColorCode® Universal Digital Color Standard and ZCC® Swatch Library, and other zenColor trademarks and copyrights are the property of zenColor Company in the United States and/or other countries.
© zenColor Company, 2019. All rights reserved.