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End User Licensing Agreement (EULA)
This END USER SOFTWARE LICENSE AGREEMENT (“EULA” or “Agreement”) is a legal agreement between BRAINSPARK ENTERPRISES AB, 559005-4960, a company incorporated under the federal laws of Sweden (“Brainspark”, “Pixelmania”), and you, as either an individual or legal entity (“Licensee” or “you”). Pixelmania is a division of the company Brainspark Enterprises AB and is fully owned and controlled by Brainspark Enterprises AB. Pixelmania owns two software products, “NNSuperResolution” and “NNFlowVector”. By purchasing, downloading, installing, or otherwise using Pixelmania’s NNSuperResolution software, or NNFlowVector software, or any other forms of software made available by Pixelmania under this EULA (collectively the “Software”), you agree to be bound by the terms of this EULA. If you don’t agree to the terms of this EULA, do not purchase, download, install, or otherwise use the Software. The same applies with any separate download, purchase, installation, or other use of any updates or other components of the Software (as applicable)(“Updates”); you will be bound by any additional license terms that accompany such Updates and if you don’t agree to those
additional terms, do not download, purchase or otherwise use such Updates.
In addition to agreeing to all the terms in this license agreement to be able to purchase, download, install and use the Software, you must also read and agree to all the Open Source Material terms detailed here: https://pixelmania.se/open-source-material or here (link to downloadable PDF).
In consideration of the mutual covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which is acknowledged by each party hereto) the parties agree as follows:
SECTION 1. LICENSE GRANT.
The Software is protected by intellectual property laws, including copyright laws and related treaties. The Software is licensed, and not sold.
Subject to the limitations of Section 2 and for the duration of the Term, Pixelmania hereby grants to Licensee a limited, non-exclusive and non-transferable license to install and use a machine readable, object code version of the Software along with the accompanying documentation and supporting material (collectively, the “Documentation”) solely for Licensee’s own internal business purposes (collectively, the “License”); provided, however, Licensee’s right to install and use the Software and the Documentation is limited to those rights expressly set out in this Agreement. All rights not expressly granted hereunder are reserved by Pixelmania.
SECTION 2. RESTRICTIONS ON USE.
Without Pixelmania’s prior written consent, Licensee shall not:
- assign, sublicense, transfer, pledge, lease, rent, share or export the Software, the Documentation or Licensee’s rights hereunder to anyone including without limitation any unauthorized Personnel (defined below), affiliates, individuals, firms, agents, or other third parties;
- alter or circumvent the copy protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software;
- modify, adapt, translate or create derivative works based on the Software or Documentation;
- use, or allow the use of, the Software or Documentation on any project other than a project produced by Licensee (an “Authorized Project”);
- allow or permit anyone (other than Licensee and Licensee’s authorized employees, contractors, or other personnel (“Personnel”) to the extent they are working on an Authorized Project) to use or have access to the Software or Documentation;
- copy or install the Software or Documentation other than as expressly provided for herein; or
- take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of Pixelmania. Furthermore, for purposes of this Section 2, the term “Software” shall include any derivatives of the Software.
SECTION 2a. FLOATING LICENSE
Licensee shall install and use only a single copy of the Software on one computer, unless the Software is purchased with a Floating License term. With a Floating Licence, Licensee may install the Software on more than one computer; provided, however, Licensee shall not at any one time use more copies of the Software than the total number of valid Software licenses purchased by Licensee (a “Floating License”).
Any violation of this paragraph is a material breach and Pixelmania shall have the right to terminate the License as of the date of such material breach without owing any further obligations to the Licensee. The Software uses the Reprise License Manager (“RLM”) license system in order to track compliance with the foregoing. To learn more about the RLM license system, visit: http://www.reprisesoftware.com. For the purposes of this Agreement, the software provided to Licensee via Floating License is included in the definition of “Software” unless otherwise expressly noted.
SECTION 2b. SITE LICENSE
In the event where Licensee purchases a Site License (defined below) of the Software, the Licensee will be granted 9999 (or more if specifically requested by the Licensee and agreed to by Pixelmania in its sole reasonable discretion) licenses of the Software per physical location. A “Site License” is a single license entitlement for a server that provides licensed Software access to a certain number of machines located at the same physical address.
Any violation of this paragraph is a material breach and Pixelmania shall have the right to terminate the License as of the date of such material breach without owing any further obligations to the Licensee. The Software uses the Reprise License Manager (“RLM”) license system in order to track compliance with the foregoing. For the purposes of this Agreement, the software provided to Licensee via Site License is included in the definition of “Software” unless otherwise expressly noted.
SECTION 2c. GLOBAL LICENSE
In the event where Licensee purchases a Global License (defined below) of the Software, the Licensee will be granted an unlimited amount of Site licenses (see section 2b above for the definition of a Site License). This type of license is tailored for large companies that operate world wide, i.e. on a global scale, with operations present in a lot of different geographical locations around the globe. Each Site License entitlement that needs to be generated, as a part of a purchased Global License, needs to be created manually by Pixelmania. This will be handled via email communication with the Licensee, after a Global License has been ordered and fully paid using the online e-store at https://www.pixelmania.se/shop/
Any violation of this paragraph is a material breach and Pixelmania shall have the right to terminate the License as of the date of such material breach without owing any further obligations to the Licensee. The Software uses the Reprise License Manager (“RLM”) license system in order to track compliance with the foregoing. For the purposes of this Agreement, the software provided to Licensee via Global License is included in the definition of “Software” unless otherwise expressly noted.
SECTION 3. BACK-UP COPY.
Notwithstanding Section 2, Licensee may store one copy of the Software and Documentation off-line and offsite in a secured location owned or leased by Licensee in order to provide a back-up for archival purposes. In no event may Licensee use the back-up copy of the Software or Documentation to circumvent the usage or other limitations set forth in this Agreement. In the event of termination, such a back up copy must be treated in a manner consistent with the terms of Section 11 (Termination).
SECTION 4. OWNERSHIP.
Licensee acknowledges that the Software and Documentation and all intellectual property rights relating thereto are and shall remain the sole property of Pixelmania. Licensee shall not remove, or allow the removal of, any copyright or other proprietary rights notice included in and on the Software or Documentation or take any other action that could adversely affect the property rights of Pixelmania or any third party licensor. To the extent that Licensee is authorized to make copies of the Software or Documentation under this Agreement, Licensee shall reproduce in and on all such copies any copyright and/or other proprietary rights notices provided in and on the materials supplied by Pixelmania hereunder. Apart from the License granted in Section 2, nothing in this Agreement shall be deemed to give Licensee any rights in the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of Pixelmania or any Third Party Licensor, and Licensee shall be strictly prohibited from using the name, trademarks or service marks of Pixelmania or any third party licensor without Pixelmania’s express written approval.
SECTION 5. LICENSE FEE.
Licensee understands that the benefits granted to Licensee hereunder are contingent upon Licensee’s payment in full of the license fee payable in connection herewith in the manner so described by Pixelmania at https://www.pixelmania.se/, in writing, or via any other of its controlled online properties (the “License Fee”).
SECTION 6. TAXES AND DUTIES.
Licensee agrees to pay, and indemnify Pixelmania from claims for, any applicable local, state, provincial or national tax (exclusive of taxes based on net income), duty, tariff or other impost related to or arising from the transaction contemplated by this Agreement.
SECTION 7 LIMITED WARRANTY.
Pixelmania warrants that, for a period of ninety (90) days after delivery of the Software: (a) the machine readable electronic files constituting the Software and Documentation shall be free from errors that may arise from the electronic file transfer from Pixelmania and/or its authorized reseller to Licensee; and (b) to the best of Pixelmania’s knowledge, Licensee’s use of the Software in accordance with the Documentation will not, in and of itself, infringe any third party’s copyright, patent or other intellectual property rights. Except as warranted, the Software and Documentation is being provided “as is.” THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND PIXELMANIA DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER PIXELMANIA KNOWS OR HAS REASON TO KNOW OF LICENSEE’S PARTICULAR NEEDS. Neither Pixelmania nor its third-party licensors warrant that the Software or Documentation will meet Licensee’s requirements or that Licensee’s use of the Software will be uninterrupted or error free. No Personnel of Pixelmania is authorized to modify this limited warranty, nor to make additional warranties. No action for any breach of the above limited warranty may be commenced more than one (1) year after Licensee’s initial receipt of the Software. To the extent any implied warranties may not be disclaimed under applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS AFTER DELIVERY OF THE SOFTWARE TO LICENSEE.
SECTION 8. INDEMNIFICATION.
Licensee agrees to indemnify, hold harmless and defend Pixelmania and Pixelmania’s affiliates, officers, directors, shareholders, Personnel, authorized resellers, and other representatives (collectively, the “Released Parties”) from any loss or damages resulting out of claims, demands, actions, defence costs (including, but not limited to, attorneys’ fees), judgments, settlements and other expenses (“Claims”) arising from or connected with the operation of Licensee’s business, Licensee’s possession or use of the Software or Documentation; Licensee’s breach of this agreement; or Licensee’s breach of any applicable third party intellectual property rights.
SECTION 9. LIMITED LIABILITY.
In no event shall the Released Parties’ cumulative liability to Licensee or any other party for any Claims arising out of or relating to this Agreement (or the Software or Documentation contemplated herein) exceed the License Fee paid to Pixelmania or its authorized reseller for use of the Software. Furthermore, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS OR LOSS OF PROFITS) OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF WHETHER SUCH PARTY KNOWS OR HAVE REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. No action arising out of or related to this Agreement, regardless of form, may be brought by Licensee more than one (1) year after Licensee’s initial receipt of the Software; provided, however, to the extent such one (1) year limit may not be valid under applicable law, then such period shall be limited to the shortest period allowed by law. Licensee further releases and discharges the Released Parties from any and all Claims that it may have against such parties arising out of use of the Software and Documentation. Licensee acknowledge and agrees that the limitations set forth in this section are integral to the amount of fees charged by Pixelmania for the Software, and that if Pixelmania were to assume any further liability other than as set forth herein, the fees charged to Licensee would of necessity be substantially increased.
SECTION 10. TERM; TERMINATION.
This Agreement is effective upon the earlier of (i) Licensee’s acceptance of the terms hereof, occurring by conduct of downloading the Software, (ii) Licensee’s payment of the License Fee to Pixelmania or its authorized reseller or (iii) Licensee’s use of the Software in any other fashion (“Effective Date”); this Agreement will remain in effect until termination or, if based on an annual subscription basis, 12 months from the Effective Date (the “Term”). If Licensee breaches this Agreement, Pixelmania may terminate the License granted hereunder immediately by service notice to Licensee. Notice may be served by Pixelmania to any of the following coordinates: email address provided by Licensee to Pixelmania during purchase at https://www.pixelmania.se/, input into any other site controlled by Pixelmania, on its website, or during communications with Pixelmania. Notice will become effective upon delivery to the Licensee’s inbox (in the case of email), 5 days from posting (in the case of notice sent by mail), or upon physical receipt by a Licensee representative (in the case of personal delivery). If the License is terminated, Licensee will either return to Pixelmania all copies of the Software and Documentation in Licensee’s possession or, if Pixelmania directs in writing, destroy all such copies. In the latter case, if requested by Pixelmania, Licensee shall provide Pixelmania with a certificate signed by an officer of Licensee confirming that the foregoing destruction has been completed in the manner directed by Pixelmania.
SECTION 11. CONFIDENTIALITY.
Licensee agrees that the Software and Documentation are proprietary and confidential information of Pixelmania and that all such information and any communications relating thereto (collectively, “Confidential Information”) are confidential and a fundamental and important trade secret of Pixelmania. Licensee may disclose Confidential Information only to Licensee’s Personnel who are working on an Authorized Project and “need-to-know” such Confidential Information, and shall advise any recipients of Confidential Information that it is to be used only as authorized in this Agreement. Licensee shall not disclose Confidential Information or otherwise make any Confidential Information available to any other of Licensee’s Personnel or to any third parties without the express written consent of Pixelmania. Licensee agrees to segregate the Confidential Information from the confidential information and materials of others in order to prevent commingling. Licensee shall take reasonable security measures, which such measures shall be at least as great as the measures Licensee uses to keep Licensee’s own confidential information secure (but in any case using no less than a reasonable degree of care), to hold the Software, Documentation and any other Confidential Information in strict confidence and safe custody. Pixelmania may request, in which case Licensee agrees to comply with, certain reasonable security measures as part of the use of the Software and Documentation. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that Pixelmania shall be entitled to seek, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
SECTION 12. INSPECTION.
Upon written request, Licensee shall advise Pixelmania of all locations where the Software or Documentation is used or stored.
SECTION 13. SURVIVAL.
Sections 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, shall survive any termination or expiration of this Agreement.
SECTION 14. IMPORT/EXPORT CONTROLS.
Licensee agrees to comply with all applicable laws that govern import and export in the country that it is situate, and will indemnify and hold harmless Pixelmania from any penalties, claims, defence costs (including, but not limited to, attorneys’ fees), judgments, settlements and other expenses arising from or connected with the same.
SECTION 15. MODIFICATION.
Pixelmania may modify this EULA at any time. Pixelmania will provide notice of those modifications in a manner deemed reasonable by Pixelmania (including posting on its website or via e-mail to the email address you provide Pixelmania). If any modification has any adverse effect on you or is otherwise unacceptable to you in any respect, you must immediately cease accessing and using the Software and terminate this EULA. If you continue to access or use any Software following any notice of modification to the EULA, you will be deemed to have accepted the modified terms. You can determine when this EULA was last modified by referring to the “LAST UPDATED” legend at the bottom of the EULA.
SECTION 16. MISCELLANEOUS.
This Agreement is the exclusive agreement between the parties concerning the subject matter hereof and supersedes any and all prior oral or written agreements, negotiations, or other dealings between the parties concerning such subject. If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys’ fees and expenses of litigation. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms of this Agreement. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. This Agreement shall be governed by and construed in accordance with the federal laws of Sweden applicable therein. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded. Any dispute arising hereunder shall be subject to final and binding arbitration in Sweden pursuant to its applicable arbitration legislation. The relationship of the parties under this Agreement is that of independent contractors. Neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.
LAST UPDATED: September 29th, 2022