Oddsorts End User License Agreement
Please read this Agreement carefully. This End User License Agreement (“Agreement”) constitutes a binding legal agreement between you (hereinafter “Licensee”) and Oddsorts (hereinafter “Licensor”), and establishes the terms and conditions by which you are permitted to install and use the Font Software (as defined in Section 23, “Definitions”, below) and any related items of Licensor property.
1. BINDING AGREEMENT.
Licensee is bound by this Agreement and acknowledges that all Use of the Font Software supplied to Licensee by Licensor or its authorized representatives is governed by this Agreement. Licensing, downloading, installing, or using the Font Software shall indicate Licensee’s express agreement to these terms and conditions. By downloading, installing and/or using the Licensed Software, Licensee confirms that it has read, understands, and agrees to be bound by the terms of this Agreement. If Licensee is entering into this agreement on behalf of an employer or client (and has the legal authority to sign contracts on their behalf), then “Licensee” refers to that entity. If not, then this agreement binds Licensee personally. This agreement does not create third party beneficiary rights for any parties. If Licensee does not agree to the terms of this agreement, do not install the Licensed Software.
2. GRANT OF LICENSE.
Licensor grants to Licensee a non-transferable, non-exclusive right to use the Fonts (collectively and hereinafter “Font Software”) specified in Licensee’s order for Font Software, on a total of not more than the number of computers and/or Central Processing Units (CPUs) specified in Licensee’s order for Font Software. Persons who are, are employed by, or are members of Licensee, who operate licensed CPUs shall be considered authorized users (hereinafter “Authorized User(s)”) of the Font Software.
3. ACCEPTANCE AND TERMINATION.
This Agreement shall be effective upon the date that Licensee receives Font Software (hereinafter “Effective Date”). Complete execution of this Agreement is contingent upon Licensee’s payment of the Licensing Fee to Licensor or Licensor’s authorized representatives. Licensor may terminate this Agreement for any material breach of this Agreement by Licensee upon thirty (30) days written notice to Licensee. The written notice shall identify the alleged breach(es) by Licensee and request a cure. If Licensee fails to cure the breach(es) within the thirty (30) day period, this Agreement shall automatically terminate. Upon termination of this Agreement for any reason, Licensee is required to destroy or return to Licensor all original Font Software and any accompanying written material and all copies of them, in part and in whole, including modified copies, if any. Licensee shall also certify to Licensor that all copies of the Font Software have been destroyed. In the event of termination due to breach by Licensee, nothing herein shall be construed as a waiver of any of Licensor’s rights or remedies under Equity or Law.
4. OBLIGATIONS OF LICENSEE.
4.1. Licensee shall be responsible for compliance with all laws, foreign and domestic, including but not limited to all United States laws and regulations relating to the control of exports or the transfer of technology.
4.2. Licensee shall use its best efforts to ensure that each user of the Font Software abides by the terms and conditions of this Agreement.
4.3. Licensee shall take all reasonable steps to safeguard the Font Software from any unauthorized use, duplication, sublicensing, or distribution. Furthermore, Licensee shall, on behalf of itself and all Authorized Users, retain all Confidential Information furnished by Licensor in connection with or derived from the Font Software in strictest confidence and shall not publish or disclose such Confidential Information at any time during the term of this Agreement or after its termination. Licensee further agrees that the terms and provisions of this Agreement shall remain confidential.
5. INSTALLATIONS AND USES.
5.1. Permitted Installations. Use of the Font Software is limited to the number of End Users identified when this License was purchased. The Font Software may be installed on a total of not more than the number of computers (including but not limited to desktop, laptop, tablet or other portable devices and/or Central Processing Units (CPUs)) specified in Licensee’s order for Font Software.
5.2. Server Installation Prohibited. Serving of the Font Software to End Users over a network, LAN, WAN, or the Internet is strictly prohibited. Any such use requires the express written permission by Licensor and requires the purchase of a license upgrade at Licensor’s discretion.
5.3. Design Uses. Use of the Font Software in the creation of or as part of a logo is permitted, except in instances wherein a single character, glyph, ornament, dingbat, or drawing constitutes the logo; such uses require a license upgrade. Use of the Font Software in the creation of design works, rasterized images for web sites, and for Licensee’s personal and professional use are permitted provided that no unauthorized uses or copies of the Font Software are transferred to any unlicensed party. Other restrictions to the use of the Font Software are set forth in this Agreement.
5.4. One Font Software Back-Up. Licensee is permitted to make a single back-up copy of the Font Software. The Font Software or documentation may not be sublicensed, sold, leased, rented, lent, or given away to another person or entity.
5.5. Service Providers/Bureaus. Service providers such as print vendors and service bureaus shall be considered Authorized Users under the terms of this Agreement for such time as they are engaged by the Licensee for the production of proofs, film, preparation for digital pre-press production, and/or printing. Upon completion of Licensee’s project, the service provider must either delete the Font Software or purchase their own license for continued use.
6. LIMITED EMBEDDING.
6.1. Licensee is permitted to embed or otherwise include only the Font outlines for personal, non-professional, non-commercial use only. Uses that are commercial or professional in nature, such as, but not limited to, multi-media CD, DVD, or other prohibited uses distributed physically or online require the purchase of a license upgrade at Licensor’s discretion.
6.2. Software Embedding. The embedding or other use of the Fonts or the outlines thereof, in software or other works distributed electronically and/or via physical media for sale is prohibited under this License. Any such use requires the express written permission by Licensor and requires the purchase of a license upgrade at Licensor’s discretion.
6.3. Flash Type Embedding. Use of the Font Software in Flash Type animations or otherwise embedding the outlines or designs embodied in the Font Software is expressly prohibited. Any such use requires the express written permission by Licensor and requires the purchase of a license upgrade at Licensor’s discretion.
6.4. PDF Type Embedding. Professional users who have purchased a license in keeping with their actual uses are permitted to embed or otherwise include the outlines embodied in the Font Software in a PDF type document, distributed physically or online for commercial use provided that the Fonts cannot be extracted, that the document is not for resale, and that the Internet uses are not redistributions of otherwise impermissible or unlicensed uses of the Font Software. Resale of any document containing an embedded copy of the Font Software is prohibited. If the ability to sell Electronic Documents and/or files containing embedded copies of the Fonts is desired, a license upgrade is required. Altering the embedding bits of the Font Software or otherwise embedding the Font Software in PDF type documents where the Font Software can be extracted from the PDF type document is expressly prohibited.
6.5. Webfont Embedding. This license prohibits transmission of the Font Software over the Internet for the purposes of font serving or font replacement by means of technologies such as Cufón, EOT, Font Squirrel, sIFR, or other technologies that now exist or that may be developed in the future. Webfont Uses include, but are not limited to, serving the Font Software to remote viewers. If you wish to use the Font Software for such purposes, a special webfont license is required. Translation or adaptation of the Font Software and/or serving translated Font Software to viewers on the Internet via means such as, but not limited to, Cufón, Font Squirrel, WOFF, sIFR, TypeKit, embeddable OpenType, etc., is prohibited under this License. Any such use requires the express written permission by Licensor and requires the purchase of a license upgrade at Licensor’s discretion.
7. RESTRICTIONS: DERIVATIVE WORKS.
7.1. Except as may be otherwise expressly permitted by Licensee’s specific license, Licensee may not distribute, sell, modify, include, adapt, translate, convert, translate into other font formats or other formats for use with other forms of devices or otherwise copy and/or include the Font Software or the design of the Font embodied therein without Licensor’s express written consent. Licensee may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or instructions of the Font Software. All rights not expressly granted are reserved to Licensor.
7.2. Licensee may not alter the Font Software in any manner whatsoever. Reformatting the Font Software into other formats and/or altering or amending the embedding bits characteristics of the Font Software is expressly prohibited. Licensor expressly reserves a right to create any such modifications, derivations, and/or adaptations. This term is contractual in nature.
7.3. The Font Software may not be used to create or distribute any Electronic Document in which the Font Software, or any part thereof, is embedded in a format that permits editing, alterations, enhancements, or modifications by the recipient of such document. Derivative works based upon the Font Software may not be sublicensed, sold, leased, rented, lent, or given away without written permission from Licensor. Licensor shall not be responsible for unauthorized, modified and/or improperly regenerated, adapted, or translated software or derivative works.
8. ARTWORK RESTRICTED.
In the event any dingbats or other art work forms are part of the Font Software, use of the artwork is further restricted. Licensee may not use single characters (“glyphs”), artwork, drawings, ornaments, or dingbats for professional uses such as, but not limited to, logo designs, goods for sale, retail packaging, or point-of-sale displays. Any such use requires a license upgrade. (See ¶ 5.3 above.)
9. OTHER RESTRICTIONS.
Use of Font Software and the design of the Font embodied therein are prohibited in the following circumstances or applications without purchasing a license upgrade:
9.1. Alphabet or Letterform-Related Products for Resale. Letterform and Alphabet Products include, but are not limited to, scrapbooking uses involving reproductions of individual letterforms including but not limited to digital alphabets (Alphas); adhesive sticker alphabet products; embroidery letters; fonts for use in the creation of signage or numbering products, monogram products, rubber stamps, die-cut and/or stencil products, tattoo flash, or converted into software or by other means for the purposes of producing alphabet or letterforms by the use of sewing and/or embroidery machines; die-cut devices and plotters; or any other product producing or containing any image of the letterforms or images derived from the design of the Font embodied in the Font Software of which any likeness of the alphabet can be reproduced where the letterform or alphabet product will be distributed or resold. These restrictions do not apply to laser or inkjet printers used for those purposes generally associated with professional design, such as graphic and industrial design, or to sign-making facilities, provided the end product is a finished work of design or ready-to-use sign.
9.2. Personalized Products for Resale. Personalized Products include, but are not limited to, use of the Font Software to create physical goods for retail sale such as using the Font Software as a resource to create individually customized T-shirts, greeting cards, mugs, postage stamps, stickers, post cards, business cards, invitations on a customized, per-order basis for retail sale by way of entities such as Café Press, Zazzle, or other similar services. Licensee is prohibited from embedding the Font in any website and/or software application that enables an End User to create custom typesetting with the Font. Users who wish to use the Font Software for such purposes must license and report the number of desired individual customized uses (hereinafter “Impressions”). Impressions may be obtained by contacting licensing@oddsorts.com. Failure to obtain the proper license for such uses is a breach of this license.
9.4. Broadcast Use. Broadcast, Exhibition, Internet, and Film Usage includes, but is not limited to the use of the Font Software to create titling and/or credits for any broadcast via television, on the Internet, and/or cable and/or motion picture theatrical distribution and/or exhibition. For use in film or in television broadcasts and where a license for the same has been purchased, the terms of any such License are limited to an annual broadcast season or the initial release. Unless otherwise provided for, broadcast usage licensing must be renewed prior to following season (whether original or re-rerun, both foreign and domestic) to retain a valid license. Failure to renew a broadcast, exhibition, and film usage license is a breach of this license. Additional licensing options are available.
9.4. Embedding in Electronic Devices. Embedding in Electronic Devices includes, but is not limited to, the use of the Font Software for any on-screen display or in an electronic device. For example, such electronic devices include electronic books, electronic book readers (such as Kindle, iBook, Nook, etc.), electronic kiosks, or gaming devices and machines. Upon the purchase of a license upgrade, the Font Software may be embedded and resident within an electronic device provided it cannot be extracted from the device.
9.5. Large Volume Commercial Uses. Large Volume Commercial Uses include, but are not limited to, proper and authorized use of the Font Software in the creation of products, promotional campaigns, and related materials; advertising campaigns and related materials; product packaging or printed materials that require or results in the creation of more than 250,000 reproductions; interior or exterior store signage for regional, national, or international uses including billboards. Under such circumstances an additional license will be required.
9.6. License Upgrades. In order to obtain a license upgrade, contact licensing@oddsorts.com. Licensees who are unsure whether intended uses of the Font Software is specifically permitted under this Agreement should contact licensing@oddsorts.com for clarification.
10. INTELLECTUAL PROPERTY RIGHTS.
10.1. THIS SOFTWARE IS LICENSED, NOT SOLD, to Licensee by Licensor and/or its authorized representatives, and is licensed for use in accordance with the terms of this Agreement. Licensee’s ownership of the magnetic and/or optical media on which the Font Software is recorded, if any, is distinct from and does not grant any right, title, or interest in and to the design of the Font or the Font Software itself. All copies of the Font Software downloaded or installed, including the copies of any Font Software that accompanies this document either as part of a downloaded file or on recorded media, such as, but not limited to, magnetic or optical media, remain the exclusive property of Licensor.
10.2. Licensee agrees that the Font Software and the design of the Font embodied therein are the exclusive property of Licensor and are protected by the copyright, trademark, and unfair competition laws and other intellectual and industrial property rights of the United States; by the copyright laws and other intellectual and industrial property rights of other nations; and by international treaties. Licensee agrees that Licensor owns all right, title, and interest in and to the Font Software, its structure, organization, code, and related files, including all intellectual and industrial property rights therein such as copyright, design, and trademarks rights. Licensee agrees that the Font Software, its structure, organization, code, and related files are valuable property of Licensor and that any intentional or negligent Use of the Font Software not expressly permitted by the Agreement constitutes an infringement of intellectual and industrial property rights.
10.3. The various names of the Fonts are the trademarks of Licensor. All other trademarks are the property of their respective owners and may be registered in the United States and/or other jurisdictions. Licensee agrees to use trademarks associated with the Font Software according to accepted trademark practice, including identification of the trademark owner’s name. Trademarks can only be used to identify printed output produced by the Font Software. The use of any trademark as herein authorized does not give Licensee any rights of ownership in that trademark, and all use of any trademark shall inure to the sole benefit of Licensor. Licensee may not change any trademark or trade name designation for the Font Software.
11. DESIGN CREDIT.
Licensee agrees to credit Oddsorts as the trademark and copyright owner and creator of the Fonts in the following manner wherever and whenever design production or any other credits are shown: “(Font Name) © (Designer/Author’s Name)/Oddsorts. www.oddsorts.com”.
12. UPDATES AND UPGRADES.
Nothing in this Agreement shall be construed to obligate Licensor to provide upgrades or updates of the Font Software to Licensee under any circumstances. To the extent upgrades or updates are provided, they shall be provided to Licensee on a license exchange basis, and Licensee agrees that by using an upgrade or update Licensee voluntarily terminates Licensee’s right to use any previous version of the Licensed Software. Upgrades and updates may be licensed with additional or different terms and fees.
13. NO TRANSFER OF RIGHTS.
13.1. Licensee may not sell, lease, sublicense, or otherwise assign or transfer (each, a “Transfer”) any rights, duties, or obligations under this Agreement, in whole or in part, to any Person, including by merger or operation of law.
13.2. If Licensee is a corporate parent, subdivision, wholly-owned subsidiary, joint venture, unincorporated division, or is otherwise affiliated with another Person (including, without limitation (i) a publication that is owned or operated by a parent company that owns or operates other publications or (ii) an agency, studio, graphics production company, or similar entity owned or operated by a parent company that owns or operates such entities), Licensee may not permit such Person, or any Person owned, operated, or otherwise affiliated with such Person, to use the licensed Font Software in any manner.
13.3. Any Transfer in violation of this Agreement will be null and void.
14. AUDIT.
14.1. During the term of this Agreement, Licensor may require Licensee to provide the addresses of all locations where the licensed Font Software is installed.
14.2. During the term of this Agreement and for one (1) year thereafter, Licensor or its designated agent may inspect the licensed Font Software and Licensee’s facilities and records to verify Licensee’s compliance with this Agreement. Any such inspection will take place only during Licensee’s normal business hours and upon no less than ten (10) days prior written notice from Licensor. Licensor will give Licensee written notice of any non-compliance, including the number of underreported units of the licensed Font Software, and Licensee will have fifteen (15) days from the date of such notice to make payment to Licensor for the applicable units of the licensed Font Software. If the shortfall in the amount payable by Licensee exceeds five percent (5%) of the total amount contemplated by this Agreement, Licensee will also pay Licensor for the cost of such inspection. Upon request by Licensor, Licensee will provide to Licensor via e-mail copies of any and all data files related to Licensee’s use of the licensed Font Software, including all copies of the licensed Font Software or provide Licensor with remote access to such data files on Licensee’s computer system.
15. CONFIDENTIALITY.
Licensee shall take all reasonable steps to safeguard the Font Software from any unauthorized use, duplication, sublicensing, or distribution. Furthermore, Licensee shall, on behalf of itself and all Authorized Users, retain all Confidential Information furnished by Licensor in connection with or derived from the Font Software in strictest confidence and shall not publish or disclose such Confidential Information at any time during the term of this Agreement or after its termination. Licensee further agrees that the terms and provisions of this Agreement shall remain confidential.
16. LIMITATION OF LIABILITY.
Licensee expressly acknowledges and agrees that Use of the Font Software is at Licensee’s sole risk. The Font Software and related documentation is provided “AS IS” and without warranty of any kind and Licensor EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE FONT SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE FONT SOFTWARE IS WITHOUT DEFECTS. THE FONT SOFTWARE IS NOT INTENDED AND WAS NOT DESIGNED OR MANUFACTURED FOR USE IN ANY CIRCUMSTANCES WHERE THE FAILURE OF THE FONT SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PSYCHOLOGICAL, OR ENVIRONMENTAL DAMAGE. THE FONT SOFTWARE IS NOT FAULT TOLERANT AND IS NOT INTENDED FOR USE IN THE CONTROL OR OPERATION OF PROCESS CONTROL DEVICES OR EQUIPMENT FOR MANUFACTURING, OR FOR USE IN NAVIGATIONAL DEVICES. THE FONT SOFTWARE IS NOT CLOCK SENSITIVE. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PARTY, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS, SAVINGS, GOODWILL, OR BUSINESS INTERRUPTION AS A RESULT OF THE USE OF THE FONT SOFTWARE EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY. Licensor’s liability to Licensee shall in no event exceed the replacement cost of the Font Software.
17. OTHER LAW.
Some jurisdictions do not allow the exclusion or limitation of incidental, consequential, special damages, or implied warranties. Any implied warranty or condition created by law is only effective for the thirty (30) day warranty period. There are no warranties or conditions of any kind after the thirty (30) day warranty period. The exclusions noted above may not apply to you. Otherwise, and to the extent permissible by law, you agree that all implied warranties are not effective for more than thirty (30) days or the shortest period of time allowed by law, which ever is less.
18. GOVERNING LAW; ARBITRATION; EQUITABLE RELIEF.
18.1. The validity, construction, and performance of this agreement shall be governed by the laws of the State of Massachusetts without regard to its conflict of law principles. The parties to this Agreement specifically consent to the jurisdiction of the courts of Massachusetts over any action arising out of or related to this Agreement.
18.2. Licensor and Licensee agree to settle all disputes, controversies, or claims relating to or arising from this Agreement in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“CAAA Rules”) in effect as of the Effective Date of this Agreement and in accordance with the applicable laws of the State of Massachusetts. All Arbitration Conferences and Hearings will be held in Boston, Massachusetts.
18.3. Licensee hereby agrees that any breach of this Agreement, including any unauthorized disclosure of the Confidential Information, would cause irreparable harm to Licensor, and that in the event of any breach or threatened breach, Licensor will be entitled to obtain equitable relief, including, but not limited to, temporary restraining orders and preliminary injunctions, irrespective of the CAAA Rules, in addition to any other remedy. Licensor’s rights and remedies under this Agreement shall be cumulative and not exclusive of any other rights or remedies provided hereunder or by law.
19. SEVERABILITY.
If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect, and the invalid provision shall be replaced by Licensor with a valid and enforceable provision that most closely effects the intent of the invalid provision.
20. SURVIVABILITY.
Sections 4–17 and 19–21 of this Agreement, and any terms that by their nature survive termination, shall survive the termination of this Agreement.
21. NO WAIVER.
No failure by either party to object to any breach of any provision of this Agreement shall constitute a waiver of such provision, a waiver of any other breach, or a waiver of any other provision of this Agreement.
22. COMPLETE AGREEMENT.
This Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, promises, representations, and negotiations between the parties concerning the Font Software. No variation of the terms of this Agreement, or any different terms, will be enforceable against Licensor unless Licensor gives its express written consent, including a written express waiver of this Agreement’s terms.
23. DEFINITIONS.
23.1. “Derivative Work” means any creation that is based on or derived from the licensed Font Software, including but not limited to any revision, modification, translation, conversion, abridgment, condensation, expansion, decompilation, encryption, rearrangement, reencoding, digitization, or redigitization, regardless of the medium on which it is recorded or the format in which it is expressed, or any other form in which the Font Software may be recast, transformed, emulated, or adapted. For the purposes of this Agreement, a Derivative Work shall also include any compilation that incorporates the licensed Font Software.
23.2. “Electronic Document” means both (i) digital files that record images solely in the form of a fixed-resolution matrix of pixels, which may include fixed images of specific characters of the Typefaces rasterized in a pixel grid, and (ii) digital files that include scalable outlines of a specific arrangement of characters of the Typefaces. Examples of Electronic Documents include, but are not limited to: Portable Document Format (PDF) files; Scalable Vector Graphics (SVG) files, Encapsulated PostScript (EPS) files; Joint Photographers’ Expert Group (“JPEG”) files; Graphics Interchange Format (“GIF”) files; Portable Network Graphics (“PNG”) files; and Tagged Image File Format (“TIFF”) files.
23.3. “Font Software” (also “Font”) means software or instructions which, when used on an appropriate device or devices, generates typeface and typographic designs and ornaments. Font Software shall include all bitmap representations of typeface and typographic designs and ornaments created by or derived from the Font Software. Font Software includes upgrades or updates (each of which may be provided to Licensee by Licensor in its sole discretion), related files, permitted modifications, permitted copies, and related documentation.
23.4. “Letterform” means any character, glyph, ornament, dingbat, drawing, or other artwork forms contained within, created by, or derived from the Font Software.
23.5. “Licensee” has the meaning set forth on the order summary/sales receipt and includes the Licensee, its agents, employees, officers, directors, shareholders, advisors, successors, members, and assignees and any of their affiliates.
23.6. “Licensor” means Charles Gibbons d/b/a Oddsorts, having an office at 11004 Avalon Drive, Northborough, MA 01532-2167.
23.7. “Person” means any individual, corporation, limited liability company, partnership, joint venture, estate, entity, association, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.
23.8. “Term” means the period commencing on the Effective Date and, subject to the termination provisions set forth in this Agreement.
23.9. “Trademarks” means the names of Licensor and the licensed Font Software set forth on the applicable receipt.
23.10. “Typefaces” means the typefaces designed, developed, and owned by Oddsorts, that are rendered by the licensed Font Software.
23.11. “Use” of the Font Software shall occur when an individual is able to give commands (whether by keyboard or otherwise) that are followed by the Font Software, regardless of the location in which the Font Software resides. “Use” of the Font Software shall also occur when the software or instructions are executed.
23.12. Captions and Construction. The wording and formatting of section headings, section numbers, and sequence of sections in this Agreement are provided for reference purposes only and in no way affect the meaning or interpretations of this Agreement. The terms “including”, “such as”, and “for example” are intended to be illustrative, not restrictive, and include the meaning “including, but not limited to.” The singular of a defined term includes the plural and vice versa.
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