End User License Agreement

END USER LICENSE
AGREEMENT

This END USER LICENSE AGREEMENT (“Agreement” or “EULA”) is a binding agreement between you (“End User,” “you,” or “your”) and FUJIFILM Wako Chemicals U.S.A. Corporation, a Virginia corporation (referred to in this EULA as “Wako”, “we” “us” or “our”). This EULA governs your use of the scheduling software known as DIRECTOR, either as a stand-alone product or as a software incorporated into third party hardware, including all related services, systems, and documentation (the “Software”).

BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO USE THE SOFTWARE AND DELETE IT FROM YOUR DEVICE.

WAKO PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT END USER ACCEPTS AND COMPLIES WITH THEM. WAKO MAY UPDATE THIS AGREEMENT FROM TIME TO TIME, AND IT IS YOUR RESPONSIBILITY TO CHECK FOR UPDATES TO THIS AGREEMENT AND TO REVIEW THE MOST RECENT VERSION OF THE AGREEMENT REGULARLY. BY USING THE SOFTWARE YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SOFTWARE. THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE OR PRODUCTS THAT YOU DID NOT ACCESS OR USE LAWFULLY.

Minors. Use of the Software by anyone under 18 years old, including anyone under thirteen (13) years old, is expressly prohibited.

  1. Registration. End User represents and warrants that: (i) End User is of legal age to form a binding contract; (ii) End User will provide Wako with accurate, current, and complete registration information when registering to use the Software; and (iii) your registration and use of the Software is not prohibited by law. Wako reserves the right to suspend or terminate your registration or access to the Software, with or without notice to you, in the event that you breach any term of this Agreement.
  2. License Grant and Scope. Subject to compliance with the terms and conditions of this Agreement, Wako grants you a limited, non-exclusive, and nontransferable license to: (a) use the Software for your personal, non-commercial use on a single device owned or otherwise controlled by you (“Device”); and (b) access, and use on such Device the Software, strictly in accordance with this Agreement.
  3. Third-Party Services. “Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases, materials, and information from third parties that is incorporated into the Software, or which End User may connect to or enable in conjunction with the Software. End User may decide to enable, access, or use any Third-Party Services (as defined above) in accordance with this Agreement. End User agrees that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services, and that Wako is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to any data of End User and personal data) or any interaction between End User and the provider of such Third-Party Services regardless of whether or not such Third-Party Services are provided by a third party that is a member of Wako’s partner program or otherwise designated by Wako as “certified”, or “approved” by or “integrated” with Wako. Any use by End User of Third-Party Services shall be solely between you and the applicable third-party provider. You irrevocably waive any claim against Wako with respect to such Third-Party Services. Wako is not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access, or use of any such Third-Party Services, or your reliance on the privacy practices, data security processes, or other policies of such Third-Party Services.
  4. License Restrictions. Except as expressly permitted under this Agreement, you shall not, directly or indirectly: (a) use or copy the Software, its outputs or other information generated by the Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not copyrightable or patentable, of the Software or any part thereof; (c) combine the Software or any part thereof with, or incorporate the Software or any part thereof, in any other software unless agreed to in writing by Wako; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof, including without limitation to underlying ideas, algorithms, file formats, or programming or interoperability interfaces of the Software, by any means whatsoever; (e) distribute viruses or other harmful or malicious computer code via or into the Software; (f) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Software; (g) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software, including any copy thereof; (h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; (i) use the Software in violation of any applicable law, regulation, or rule; (j) use the Software for purposes of competitive analysis of the Software, the development of a competing product or service, or for the purpose of obtaining unauthorized access to the Software, or any other purpose that is to the commercial disadvantage of Wako. Wako retains all title to, except as expressly licensed herein, all rights to the Software, all copies, derivatives, and improvements; (k) use the Software in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
  5. Responsibility for Use of Products. You are responsible and liable for all uses of the Software through access thereto provided directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Software by any other party to whom you may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
  6. Collection and Use of Information. End User acknowledges that when you register for or use the Software, you may, directly or indirectly through the services of third parties or automated means (for example, cookies and web beacons), collect and store information regarding End User, End User’s use of the Software, and the equipment through which the Software is accessed and used. End User may also be required to provide certain information about yourself as a condition to accessing, registering for, or using the Software or certain of its features or functionality, and the Software may provide you with opportunities to share information about yourself with others. By accessing, registering for, using, or providing information through the Software, you consent to all actions taken by Wako with respect to your information in compliance with this Agreement.
  7. Geographic Restrictions. The Software is based in the United States. You acknowledge that you may not be able to access all or some of the Software outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Software from outside the United States, you are responsible for compliance with local laws.
  8. Updates. Wako may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Wako has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement. Wako will endeavor to carry out such work during times that will cause the least disruption to your business. You shall cooperate, if necessary, to perform such work.
  9. Intellectual Property Rights. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. End User acknowledges and agrees that the Software is provided under license, and not sold, to Licensee. End User does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Wako and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the End User in this Agreement. You shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Wako is, and will be, the sole and exclusive owner of all right, title, and interest in and to any suggestions, improvements, contributions, or other feedback (collectively, “Feedback”) provided to Wako by End User, including all Intellectual Property Rights therein. End User hereby irrevocably assigns, without additional consideration, all right, title, and interest throughout the world in and to the Feedback, including all Intellectual Property Rights therein. Upon the reasonable request of Wako, End User will promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Wako to prosecute, register, perfect, or record its rights in or to any Feedback.
  10. Term and Termination. This Agreement commences when you access, register for, or use the Software and will remain in effect until terminated as set forth herein (the “Term”). Wako may terminate this Agreement at any time without notice if it ceases to support the Software, which Wako may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without notice if you violate any of the terms and conditions of this Agreement. Wako may suspend your access to the Software for any reason at any time without notice. Wako may terminate this Agreement for any reason upon one (1) days’ notice to you. Upon termination of this Agreement, all rights granted to you hereunder shall also terminate, and you must cease all use of the Software. Termination will not limit any of Wako’s rights or remedies at law or in equity.
  11. Warranty Disclaimers. THE SOFTWARE IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WAKO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WAKO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE END USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, PRODUCTS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WAKO OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO ANY CONTENT ADDED OR SHARED IN THE SOFTWARE BY END USER (“USER CONTENT”), INCLUDING THE LEGALITY, RELIABILITY, ACCURACY, COMPLETENESS, CONFIDENTIALITY, OR APPROPRIATENESS OF USER CONTENT.
  12. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WAKO’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY THE END USER ASSOCIATED WITH END USER’S ACCOUNT DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM.
  13. Indemnification. You agree to indemnify, defend, and hold harmless Wako and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to Your use or misuse of the Software or your breach of this Agreement.
  14. Export Regulation. The Software may be subject to United States export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
  15. Miscellaneous.
    1. Governing Law/Jurisdiction. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of, or related to, this Agreement or the Software shall be instituted exclusively in the state or federal courts of Richmond, Virginia. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
    2. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
    3. Entire Agreement. This Agreement and all other documents that are incorporated by reference herein constitute the sole and entire agreement between End User and Wako with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    4. Assignment. You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise. No delegation or other transfer will relieve End User of any of your obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14(d) is void. Wako may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without End User’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    5. Non-Transferability. The license granted herein is non-transferable. You may not distribute, sublicense, assign, share, sell, grant a security interest in, use for service bureau purposes, or otherwise transfer this Agreement or your rights pursuant to this Agreement without the prior written consent of Wako.
    6. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    7. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

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