zenColor® Connect Mobile
End User License Agreement
Effective: August 15, 2019
PLEASE Read the following Terms of the License Agreement (“Agreement”) carefully before using zenColor® Connect Mobile and related Services. These Terms (“Terms”) govern your (“Licensee”) access to and use of zenColor® Connect Mobile provided by zenColor® Corporation (“zenColor®” or “we”) as well as specific features and functions that are available through zenColor® Connect Mobile (collectively, the “Services”). The Services include ‘free’ Services available with the demo version of zenColor® Connect Mobile as well as ‘paid’ Services available that the Licensee may acquire on a time-limited subscription basis (currently monthly and annually). (Hereinafter the Term “ZCCM” shall mean to include zenColor® Connect Mobile and the Services provided through zenColor® Connect Mobile).
Acceptance of Terms
zenColor® makes the ZCCM available to Licensee subject to these Terms. These Terms govern Licensee’s access to and use of the ZCCM. Licensee’s access to and use of the ZCCM is conditioned on Licensee’s acceptance of these Terms. When Licensee access or use the ZCCM, Licensee represent and warrant that Licensee have read and understood these Terms and 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 ZCCM. If Licensee does not agree to the Terms, please discontinue all further use of the ZCCM. 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 ZCCM after the Effective Date constitutes Licensee’s acceptance of and agreement to be bound by the Terms as modified.
zenColor® does not collect and use Licensee’s information other than the name, email address, company, city, state, and country of the registered user. This information is collected and used in order to deliver information to upload, activate, and service the ZCCM application.
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 and use the ZCCM. This right and license is conditioned on Licensee’s continued compliance with these Terms. Licensee may only use the ZCCM on a device that the Licensee owns. Licensee may not rent, lease, lend, sell, transfer, redistribute or sublicense the ZCCM and, if Licensee seeks to sell or otherwise transfer a device on which the ZCCM is installed, the Licensee must remove the ZCCM from such device before completing such sale or transfer.
Licensee retains all rights and ownership of Licensee’s content.
zenColor® respects the Licensee’s privacy and does not access or view the Content created or loaded into ZCCM. At times, however, zenColor® may need to access or view the Licensee’s Content to (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (c) enforce these Terms.
Some Services in the ZCCM may provide features that allow the Licensee to share Content with other Licensees or to make it public. To ‘share’ means to email, post, transmit, upload, or otherwise make available (whether to zenColor or other Licensees) through Licensee’s use of the ZCCM. Other users may use, copy, modify, or re-share Licensee’s Content in many ways including but not limited to various social media platforms integrated with the ZCCM. Please consider carefully what Licensee chooses to share or make public as Licensee is entirely responsible for the Content that Licensee share. zenColor® does not monitor or control what others do with Licensee’s Content. Licensee is responsible for determining and notifying other users of the limitations that are placed on Licensee’s Content and for applying the appropriate level of access to Licensee’s Content.
We neither endorse nor assume any liability for the contents of any material generated or otherwise transmitted by users of the ZCCM. We generally do not pre-screen, monitor or edit Content that may be available on or through the ZCCM. We reserve the right to remove any Content that, in our judgment and at our sole discretion, does not comply with these Terms, or is otherwise harmful, objectionable or inaccurate. We are not responsible for any failure or delay in removing such Content. Licensee hereby consent to such removal and waive any claim against us arising out of such removal of Content.
The zenColorCode® Universal Digital Color Standard and ZCC® Swatch Library
As part of the Services (whether ‘free’ or ‘paid’), zenColor provides Licensee with access to the zenColorCode® 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 applications and/or devices expressly authorized by zenColor though the ZCCM and not with any other application or devices; and
Licensee expressly agree not to make copies of the 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 ZCCM.
Restrictions on Use
To ensure that we provide the best service to all of our users, the Licensee agrees to use the ZCCM in a manner consistent with the following restrictions. Licensee’s use of the ZCCM is subject to all applicable laws and regulations.
Licensee may not engage in the following prohibited activities while accessing or using the ZCCM: Make use of the ZCCM 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 the ZCCM, or with another individual’s use of the ZCCM (including without limitation by stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way); Access or use the ZCCM 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 ZCCM 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 ZCCM, 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 with the ZCCM); Access, tamper with, or use non-public areas of the ZCCM, 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 ZCCM 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®; Scrape the ZC CM or scrape content from the ZCCM, without the express prior consent of 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 ZCCM to send altered, deceptive or false source-identifying information; Interfere with or disrupt (or attempt to interfere with or disrupt) access to the ZCCM of any user, host or network, including sending a virus, overloading, flooding, spamming or mail-bombing the ZCCM, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the ZCCM; 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 ZCCM 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 in the ZCCM 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 ZCCM 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.
Third Party Sites and Information
The ZCCM may contain 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 ZCCM
The ZCCM encompasses the intellectual property of and is owned by zenColor®. The ZCCM, 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 ZCCM 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 ZCCM. All rights not expressly granted are reserved by zenColor®.
Nothing contained in the ZCCM should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any image or trademark displayed in the ZCCM without the written permission of zenColor or such third-party owner of images and trademarks displayed by the ZCCM. Except as expressly stated herein, Licensee’s use of the images and trademarks displayed by the ZCCM, or any other content associated with the ZCCM, is strictly prohibited.
Fees and Payments
Services require the Licensee to purchase a subscription in order to access all or part of such Service. zenColor® currently offers a monthly or annual subscription. Licensee’s monthly or annual subscription renews automatically unless canceled within thirty (30) days before end of the current monthly or annual subscription. Any use of the Services without a valid subscription automatically renews user’s license. 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
The Terms will continue to apply until terminated by either Licensee or zenColor® as set forth below. Licensee may end the Agreement with zenColor® at any time for any reason by terminating Licensee’s account and discontinuing use of the ZCCM.
zenColor® may suspend or terminate Licensee’s access to the ZCCM or cease providing Licensee with all or part of the Services at any time for any reason, without notice or liability to Licensee. For example, if we reasonably believe that (i) Licensee violated these Terms, (ii) Licensee create risk or possible legal exposure, or (iii) our provision of the ZCCM or Services to Licensee is no longer commercially viable, we may terminate Licensee’s access to the ZCCM. We reserve the right to refuse access to the ZCCM to anyone for any reason at anytime. We shall not be liable to Licensee or any third party should we exercise such right, in whole or in part.
Disclaimer of Warranties
USE OF THE ZCCM 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.
THIS ZCCM AND ALL 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 ZCCM WILL MEET LICENSEE’S REQUIREMENTS; (B) THE OPERATION OF THE ZCCM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ZCCM 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 ZCCM SHALL CREATE ANY WARRANTY REGARDING THE ZCCM NOT EXPRESSLY STATED IN THIS AGREEMENT. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS ZCCM, 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 THIS ZCCM IS 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 THIS ZCCM OR OF SITES REFERENCED OR LINKED FROM THIS ZCCM, 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 THIS ZCCM SHALL BE LIMITED TO THE AMOUNT LICENSEE PAID US FOR THE ZCCM AND ASSOCIATED 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 ZCCM. 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 ZCCM and 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 ZCCM 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.
Software available on or through the ZCCM may be subject to United States Export Controls. The Licensee may not use or otherwise export or re-export the ZCCM except as authorized by United States law and the laws of the jurisdiction in which the software was obtained. By downloading or using the ZCCM 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 ZCCM, 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 ZCCM 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, ZCC® Universal Digital Color Standard, ZCC® Swatch Library, and other zenColor trademarks and copyrights are the property of zenColor Corporation in the United States and/or other countries. © 2019 zenColor® Company LLC – All rights reserved.