This End User License Agreement (this “Agreement”), which is a legal agreement between you (“Licensee”) and Easel, Inc., a Delaware corporation ("Easel"), shall govern Licensee’s use of and access to the Platform (as defined below). By checking any acceptance boxes, clicking any acceptance buttons, activating an account within the Platform or making any other use of the Platform, Licensee (a) accepts this Agreement and agrees to be bound by each of its terms, and (b) represents and warrants to Easel that (i) Licensee has the authority to enter into this Agreement, and (ii) this Agreement is binding and enforceable against Licensee. Please read this Agreement carefully, as it constitutes a legally-binding agreement between Easel and Licensee. It is agreed and understood that a license may be purchased by Licensee either through Easel’ website (the “Website”) or in connection with the purchase of a machine or other product at the Website or elsewhere.
1. Platform. Subject to the terms set forth herein, Licensee hereby subscribes for access to the Platform on a limited, revocable, non-exclusive, non-transferable and non-sublicensable license basis solely for the purposes described within the Website or within the Platform. Easel shall host, or engage one or more third parties to host, the back end of the Platform in accordance with Easel’ customary practice. For purposes of this Agreement, "Platform" shall mean Easel’ “Easel Pro” software primarily intended to serve as a tool for 3D carving. So long as Licensee’s license to access and use the Platform remains current, Easel will provide Licensee with its standard and customary support by e-mail between the hours of 9:00 a.m. and 5:00 p.m. (Central Standard Time).
2. Representations and Warranties. Each party represents and warrants that: (i) it has the authority to enter into this Agreement and perform the services required of it hereunder; and (ii) each party will comply with all applicable laws and regulations in carrying out its responsibilities hereunder. In addition, Licensee hereby represents, warrants and covenants that (a) Licensee has all authority necessary to enter or import all data or other information Licensee either submits to Easel or enters into the Platform (collectively, “Submitted Information”), (b) Licensee will not submit or otherwise made available any extraneous or inappropriate Submitted Information to Easel or within the Platform, and (c) Easel, immediately upon receipt of Submitted Information, will have all rights necessary to use the Submitted Information for purposes of operating the Platform.
3. Fees; Expenses. In consideration of the license hereunder, Licensee shall pay to Easel the fees specified within the Website or within any online order form for the Platform (each, an “Order”) from time to time, in each case at the times specified therein. Fees may, as set forth within the Website or Order from time to time, be charged monthly or annually. To the extent Licensee provides any credit card to Easel, whether via Easel’ website or via any other means of communication, Easel shall be entitled to charge such credit card for all fees due and owing as set forth herein (such authorization to extend until such time as Licensee terminates this Agreement in accordance with the terms set forth herein). Fees, once paid, are non-refundable. Fees which are not timely paid shall accrue late charges from the date such payment was due until the date paid at a rate equal to the lesser of 15% per annum or the maximum rate permitted by applicable law. Licensee may not offset or withhold fees due under this Agreement for any reason, and Licensee agrees to reimburse Easel for all reasonable costs (including attorney’s fees) incurred in collecting past due fees owed by Licensee.
4. Term. This Agreement shall continue in full force beginning on the date of acceptance of this Agreement and continuing (i) on a year-to-year basis, as described within the Website and/or Order, until such time as either party elects not to renew this Agreement by providing written notice of non-renewal to the other party at least 10 days prior to the expiration of any term year, (ii) for one year, subject to extension by mutual written or electronic agreement of the parties, or (iii) as otherwise set forth within the Website or Order from time to time. In addition, either party shall be entitled to terminate this Agreement at any time in the event the other party (i) declares bankruptcy, or (ii) breaches any of its material obligations hereunder (including, without limitation, payment obligations) and fails to cure such breach within 30 days from the date of receipt of written notice of such breach. Upon any termination of this Agreement, Licensee shall promptly pay all fees and reimburse Easel for all expenses due and owing hereunder, and upon any early termination of this Agreement by Licensee, no refunds will be issued. It is agreed and understood that Licensee’s license to the Platform described herein may be activated in any number of ways, including without limitation (x) activation by Licensee at the time of purchase of the initial Platform license, (y) subsequent activation by Licensee using an activation key provided by Easel, or (z) automatic activation initiated by Easel at any time following initial purchase of the Platform license by Licensee (Easel to have sole discretion in electing to cause any such activation at any time). Sections 2 through 14 of this Agreement shall survive any termination of this Agreement.
5. Intellectual Property.
6. Confidentiality. Licensee agrees to treat as confidential all non-public information of Easel (including, without limitation, all non-public information regarding the Platform and Easel’ business), not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, Licensee shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by Easel, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice.
7. Disclaimer. Except as explicitly set forth herein, Easel, together with Easel’ employees, affiliates, agents, suppliers, licensors and the like, does not make any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Platform will be error-free, (c) as to a minimum level of operability or uptime for the Platform, (d) as to any level of security, (e) as to the actions of any third party, or (f) as to the business results that may be obtained by Licensee by entering into this Agreement. Licensee is responsible, at Licensee's sole cost and expense, for providing all equipment necessary to load and/or use the Platform. While it is Easel’ objective to make the Platform accessible at all times, the Platform may be unavailable from time to time for any reason including, without limitation, routine maintenance and/or bugs within the Platform.
8. Limitation on Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF Easel TO LICENSEE FOR ANY CLAIM HEREUNDER, RELATING TO THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE FEES PAID TO Easel DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE. TO THE EXTENT ANY OF THE FOREGOING LIMITATIONS ARE NOT PERMISSIBLE UNDER APPLICABLE LAW, SUCH LIMITATIONS SHALL NOT APPLY TO LICENSEE.
9. Force Majeure. Excluding payment obligations hereunder, neither party shall be liable to the other party for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies or power.
10. Governing Law. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by the appropriate court located solely and exclusively in Cook County, Illinois. Licensee agrees to such exclusive jurisdiction in Cook County, Illinois, and waives any jurisdictional claims in respect thereto (including, without limitation, forum non conveniens). In any such proceeding, the substantially prevailing party shall be entitled to reimbursement by the non-prevailing party for all attorneys' fees expended in such matter.
11. Non-Solicitation. During the term of this Agreement and for a period of 1 year following the termination of this Agreement for any reason, Licensee shall not, either directly or indirectly, solicit or hire any employee of Easel or any individual that was an employee of Easel at any time during the 1-year period immediately preceding the date of proposed hire.
12. Export. The Platform, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations. The Platform may not be used, sold, resold, sublicensed, diverted, transferred or otherwise exported or re-exported by Licensee: (i) in, into or through any country designated as a terrorist supporting country by the U.S. government or any of its agencies; (ii) in, into or through any country for which the U.S. has an embargo or with which the U.S. or any of its agencies maintains comprehensive trade controls; (iii) to or by a national or resident of the countries described in (i) or (ii); or (iv) to or by any party included in the United States Department of Commerce's Denied Persons List, Entity List or Unverified List; or the United States Department of the Treasury's Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers, or Specially Designated Terrorists List; or the United States Department of State's Designated Foreign Terrorist Organizations or Debarred Persons List; or is otherwise designated by the U.S. government or any of its agencies as a party with which it is unlawful to do business.
13. Usage of Platform. The following terms and conditions govern general use of the Platform:
14. Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. Easel shall be entitled to subcontract various of the services to be performed hereunder to third parties. This Agreement supersedes all prior written or oral agreements between the parties regarding the subject matter hereof (including any contradictory or additional language in any purchase order). Licensee shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based solely upon Easel’ income derived hereunder. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by Licensee other than to an entity acquiring substantially all of its business and assuming all of its obligations. Any notice pursuant this Agreement shall be deemed effective when delivered in person, or one day after sending such notice to: (i) in the case of Easel, 655 Deerfield Rd Ste 100 #121 Deerfield, IL 60015; and (ii) in the case of Licensee, to the last address provided by Licensee to Easel in writing, in either case by reputable overnight courier with confirmation of next-day receipt. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.
