OZONE STORY TECH
END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE DOWNLOADING THE SOFTWARE.
IF YOU ARE AN INDIVIDUAL WHO IS ACCEPTING THIS EULA ON BEHALF OF A THIRD PARTY, YOU, THE INDIVIDUAL, REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT THIRD PARTY TO THIS EULA. THE TERM “LICENSEE” AS USED IN THIS EULA MEANS COLLECTIVELY YOU, THE INDIVIDUAL WHO IS ENTERING INTO THIS EULA, AND THE THIRD PARTY SUCH INDIVIDUAL REPRESENTS.
BY DOWNLOADING AND/OR USING THIS SOFTWARE, YOU AFFIRM THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA AND THAT YOU ARE ENTERING INTO A BINDING CONTRACT BETWEEN YOU AND O3 STORY TECHNOLOGIES, INC. (“OZONE STORY TECH”). IF YOU DO NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS EULA, THEN DO NOT CLICK “ACCEPT” AND YOU WILL NOT BE AUTHORIZED TO USE THE SOFTWARE. IF YOU DOWNLOAD OR USE THE SOFTWARE, YOU ARE AFFIRMATIVELY ACCEPTING THIS EULA.
- “Documentation” means the technical manuals and user guides provided by Ozone Story Tech to licensee together with the Software, along with any modifications and Product Updates thereto.
- “License Term” means the period of time, beginning on the Start Date, during which licensee may use the Software, as identified in the relevant License Agreement.
- “License Agreement” means the electronic document which licensee and Ozone Story Tech approve concurrently with this EULA, which sets forth the terms governing licensee’s purchase of the Software license, including, by way of example, applicable license fees, Software descriptions, licensing parameters (e.g., the number of licenses, users, if a trial or commercial license, etc.), and the License Term.
- “Software” means the object code version of the Ozone Story Tech proprietary technology that is more particularly described in the Documentation, and any Product Updates made by Ozone Story Tech as provided to licensee.
- “Start Date” means the first day that licensee may use the Software, and which is the earliest of the following to occur: (i) the date that licensee accept this EULA, (ii) the date set forth on a License Agreement, or (iii) the date on which licensee download, install, activate, or use the Software.
- “Support and Maintenance” means the services described in the Support and Maintenance Terms and Conditions.
- “Support and Maintenance Terms and Conditions” means the document provided to licensee with this EULA and licensee’s License Agreement which governs Ozone Story Tech’s provision to licensee of the Support and Maintenance.
- “Product Update(s)” means any patch, bug fix, correction, update, upgrade, or other modification or addition made by Ozone Story Tech to the Software and which is generally made available from time to time by Ozone Story Tech to Software licensees who receive Support and Maintenance.
2. License Grant.
- Software License. Subject to the terms and conditions of this EULA, during the applicable License Term, Ozone Story Tech hereby grants to licensee (i) a limited, non-exclusive, revocable, non-exclusive, non-transferable and non-sublicensable license for licensee to use the Software solely for licensee’s internal business purposes, subject at all times to licensee’s compliance with the terms and conditions contained in the Documentation (including, without limitation, restrictions and requirements regarding the platforms and technology that may be used with the Software), and (ii) the right to maintain a reasonable number of copies of the Software on licensee’s systems for backup and recovery purposes. Licensee may allow licensee’s employees, contractors, and other individual users to access and use the Software, provided such use is for licensee’s internal business purposes, in compliance with this EULA, and that licensee bear full responsibility and liability for all such users. Licensee agrees that licensee’s license of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Ozone Story Tech with respect to future functionality or features.
- Trial License. If licensee is downloading a temporary evaluation license (a “Trial Software”), then then terms of this EULA apply, subject to the following different or additional terms: (i) the License Term for Trial Software is thirty (30) days (the “Trial License Term”); (ii) Ozone Story Tech may extend the Trial License Term upon licensee’s request and Ozone Story Tech’s written consent; (iii) the definition of Start Date herein also applies to the Trial License Term Start Date; (iii) Trial Software is provided “AS IS” without warranty of any kind, and Ozone Story Tech disclaims all warranties, indemnities, and all other liabilities for Trial Software; (iv) licensees are not entitled to Support and Maintenance or any Product Updates for Trial Software; (v) licensee may only use the Trial Software for product evaluation and learning purposes and on only one computer at a time; and (vi) either Ozone Story Tech or licensee may terminate the license for Trial Software upon five (5) days’ written notice to the other.
- No Other Grant of Rights.Except as expressly provided herein, nothing in this EULA will be construed to confer any ownership interest, license, or other rights to licensee by implication, estoppel or otherwise to the Software or to any Ozone Story Tech intellectual property or any of Ozone Story Tech’s other products, goods, services, or materials.
3. Use Restrictions. As a condition of the license granted in Section 2, licensee shall not and licensee shall not authorize or permit any employee, contractor or other third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive or learn the nature of any source code or algorithms from the Software; (b) modify, adapt, or create any derivative works based on the Software; (c) distribute, sell, license, lease, transfer, or otherwise provide any Software to third parties except as expressly provided in licensee’s license in Section 2; (d) provide the Software as a service, or part of a service or other product, to third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any Software; (f) create, publish, and/or distribute to other third party any source code, machine code, or documentation describing application programming interfaces (APIs) from the Software, nor create and/or distribute any other APIs, machine code, or source code created by you or others that replicate, adapt, wrap, or further interface with Software APIs or Software functionality; (g) remove or alter any copyright or other proprietary notice from the Software or Documentation; (h) develop or aid in the development of a product, service, or product capability competing with the Software’s present or announced capabilities; (i) integrate the Software with any other software, such as open source software, that may require or impose the subsequent open source release of any part of the Software; (j) use or allow to be used the Software, or results or content generated or authored with the aid of the software, in any machine learning, statistical, or other artificial intelligence models or systems, whether for internal use or not, whether for enhancing or improving the use of the Software or not; or (k) use the Documentation except for supporting licensee’s authorized use of the Software.
Licensee shall deliver to Ozone Story Tech any modifications and derivative works of the Software, including modifications and derivative works of any source code or machine code provided by or extracted from the Software, and hereby assigns all intellectual property rights (including copyright and potential patentable inventions) of such modifications to Ozone Story Tech. Licensee may use such modifications under the same terms as its license to the Software granted hereunder.
4. Fees and Payment. License fees and Support and Maintenance fees for the Initial term (as herein defined) are listed on licensee’s License Agreement. Ozone Story Tech reserves the right to increase fees for an upcoming Renewal Term, provided, that licensee will be given notice of any increase at least sixty (60) days prior to the start of the upcoming Renewal Term. All fees are due and payable fifteen (15) days from date of invoice. Except as otherwise provided herein, fees are nonrefundable.
5. Confidentiality. Licensee agrees that the Software (including Trial Software) and Documentation are proprietary to and the confidential information of Ozone Story Tech, and that all such information and any related communications (collectively, “Confidential Information”) are confidential and a fundamental and important trade secret of Ozone Story Tech. If licensee is a business user, licensee may only disclose Confidential Information to those of licensee’s employees or contractors to whom licensee have given authorization to use the Software for licensee’s business purposes and who have a “need-to-know” such Confidential Information for such business purposes. Licensee shall advise any recipients of Confidential Information that it is to be used only as expressly authorized in this EULA. Licensee shall not disclose Confidential Information or otherwise make any Confidential Information available to any of licensee’s other employees or contractors without Ozone Story Tech’s express written consent. Licensee must take reasonable security measures, (no less than a reasonable degree of care), to hold the Software, Documentation and any other Confidential Information in strict confidence and safe custody. This clause shall not apply to any information that is in or comes into the public domain (other than as a result of licensee’s breach of licensee’s obligations under this EULA), or was in licensee’s lawful possession before receipt, or which licensee develop independently and without breach of this clause. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that Ozone Story Tech shall be entitled, without waiving any other rights or remedies, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction.
6. Ownership. All Software (including Trial Software) is licensed and not sold. The Software and any authorized copies that licensee make are the intellectual property of and are owned by Ozone Story Tech. The structure, organization, and source code of the Software are the valuable trade secrets and Confidential Information of Ozone Story Tech. The Software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. This EULA does not grant licensee any intellectual property rights in the Software. All rights not expressly granted are reserved by Ozone Story Tech. Licensee are not obligated to provide Ozone Story Tech with any suggestions or feedback about the Software (“Feedback”); however, to the extent licensee does provide Feedback, licensee assigns all ownership in and to such Feedback to Ozone Story Tech and Ozone Story Tech may use and modify such Feedback without any restriction or payment.
7. Indemnity. Licensee agrees to indemnify, defend, and hold harmless Ozone Story Tech, its affiliates, and their respective officers, directors, shareholders, employees, agents and other representatives (the “Ozone Story Tech Indemnitees”) from and against any and all claims, proceedings, threats, demands, or causes of action (each a “Claim” and collectively, “Claims”) brought against any of the Ozone Story Tech Indemnitees by a third party, court, or government agency that arises from or relates to (i) licensee’s breach of this EULA or (ii) licensee’s infringement of Ozone Story Tech’s or any third party’s intellectual property rights. Licensee will pay all damages, liabilities, fees, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) arising from or connected with such Claim.
8. Support and Maintenance. Neither the Support and Maintenance nor any Product Updates are provided with Trial Software licenses. Licensee must purchase Support and Maintenance Services to receive the Software for use other than during a Trial License Term. Licensee will receive the level of Support and Maintenance indicated on licensee’s License Agreement and as described in the Support and Maintenance Terms and Conditions.
9. Limited Warranty.
- Warranty. Ozone Story Tech warrants that for ninety (90) days from the Start Date of licensee’s License Term (the “Warranty Period”), the Software, when properly installed and used on an operating system and platform for which it was designed, will perform substantially in accordance with the functions described in the Documentation. If, within the Warranty Period, licensee notifies Ozone Story Tech in writing that the Software is not performing substantially in accordance with the Documentation, Ozone Story Tech will, at their sole option, repair or replace the Software at no cost to licensee, provided that licensee provides all necessary information as needed to identify, recreate and remedy the nonconformity. If Ozone Story Tech is unable to repair or replace the Software, Ozone Story Tech will issue a refund to licensee of the license fee and Support and Maintenance fee licensee paid to Ozone Story Tech for such non-conforming Software, in which event, this EULA will terminate. The foregoing is licensee’s sole and exclusive warranty and remedy and the entire liability of Ozone Story Tech to licensee for breach of this warranty.
- Exclusions. The express warranty set forth in Section 9(a) does not apply if the nonconformity is caused by (i) modifications to the Software made by anyone other than Ozone Story Tech or a third party acting on Ozone Story Tech’s behalf, has (ii) installation, use or maintenance that is not in accordance with this EULA, Documentation, and Support and Maintenance Terms and Conditions, or (iii) licensee’s negligence or accident. Further, licensee must report the warranty breach within the Warranty Period in License Agreement for the coverage to apply.
- Disclaimer. OZONE STORY TECH DOES NOT 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE SOFTWARE IS PROVIDED “AS IS,” AND OZONE STORY TECH PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND OZONE STORY TECH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
10. Term, Renewal, and Termination.
- License Term and Renewal Terms. Excluding a Trial License Term, and unless this EULA is earlier terminated for breach, the Software license granted herein will remain effective through the License Term, and unless either party notifies the other thirty (30) days prior to the anniversary of the Start Date that licensee declines renewal, this EULA will automatically renew on the anniversary of the Start Date for a new License Term equal in duration to the original License Term (each a “Renewal Term”). Licensee will be invoiced for the license fees and Support and Maintenance fees due for the upcoming Renewal Term in advance pursuant to Section 4. The foregoing process will repeat until this EULA is terminated or not renewed.
- Termination. Licensee or Ozone Story Tech may terminate this EULA if the other materially breaches any of its obligations hereunder and fails to cure the breach within thirty (30) days from being notified of the breach, or (b) immediately, if the other ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. Ozone Story Tech may terminate this EULA immediately if licensee breaches the terms of the license, ownership, or confidentiality. Ozone Story Tech may mutually agree to terminate this EULA by mutual written consent.
- Effects of Termination or Expiration. If licensee terminate this EULA for cause, Ozone Story Tech will refund to licensee the pro rata amount of prepaid license fees and Support and Maintenance fees for the remainder of the Initial Term or Renewal Term. If Ozone Story Tech terminate this EULA for cause, all amounts due and owing for the remainder of the Initial Term or Renewal Term will be immediately due and payable. Under any other termination or expiration circumstances, no fees will be refunded. Upon termination or expiration of this EULA, licensee’s access to the Software will be immediately deactivated, and licensee will no longer receive any Support and Maintenance. If licensee have breached the license terms, Ozone Story Tech’s ownership rights, or licensee’s confidentiality obligations, in addition to the foregoing, Ozone Story Tech may pursue all available financial damages and equitable remedies.
- Survival. The following sections of this EULA survive its expiration or termination: Sections 3-7, and 9(c), 10(c), 11-13.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 3 (USE RESTRICTIONS), 5 (CONFIDENTIALITY), SECTION 6 (OWNERSHIP) , OR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO OZONE STORY TECH FOR THE RELEVANT SOFTWARE, HARDWARE, OR SERVICE DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
12. Audit Rights. Upon Ozone Story Tech’s written request, licensee agrees to provide a usage report, which in certain cases may be generated using the Software or provide Ozone Story Tech with reasonable access to the system administrator logs or portal solely for the purpose of certifying the number and type of registered devices or users. Ozone Story Tech may also remotely run the device or user count for the Software through Ozone Story Tech’s systems and access rights, and licensee agrees to give Ozone Story Tech such access for this purpose. If licensee’s license is tied to a set number of users or registered devices, licensee must not exceed the number of licensed users or devices. If licensee exceed the licensed number of users or devices, licensee must purchase additional licenses to cover the additional users or devices. License fees for excess users or devices, along with the corresponding usage shall be based on Ozone Story Tech’s then-current price list or specified in licensee’s License Agreement. To the extent that any information Ozone Story Tech collects constitutes personal data under U.S. federal or applicable state privacy laws, such information will be treated as personal data in accordance with Ozone Story Tech Privacy Notice (see https://ozone3d.com/support/privacy-policy/), as may be updated by Ozone Story Tech from time to time. Licensee agrees to inform all of licensee’s users of the Software of Ozone Story Tech’s Privacy Notice.
- Export/Import. Software and Documentation may be subject to U.S. and foreign import and export control laws and regulations. Licensee agrees to comply with all such regulations applicable to licensee, including obtaining applicable import licenses.
- Governing Law and Jurisdiction. This EULA, and the rights and duties of the parties arising from this EULA, shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this EULA shall be state and federal courts in Riverside County, California, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.
- Arbitration. In the event of any dispute arising out of or related to this Agreement, the parties hereby agree to resolve any such dispute first through internal mediation. Any dispute arising out of this Agreement shall be resolved by binding arbitration before a single arbitrator pursuant to the Expedited Commercial Rules of JAMS and any award rendered may be entered in any court of competent jurisdiction. This Agreement shall be construed in accordance with the laws of California without reference to any conflict of law provisions. Venue shall only be proper in Corona, California. In any arbitration or other proceeding arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs incurred.
- Equitable Relief. Notwithstanding Section 12(b), licensee agrees that a material breach of this Agreement by licensee or licensee’s users that impact Ozone Story Tech’s rights in Ozone Story Tech’s Software, intellectual property, or Confidential Information may cause irreparable injury to Ozone Story Tech for which monetary damages would not be an adequate remedy and that Ozone Story Tech shall be entitled to apply for equitable relief in addition to any remedies Ozone Story Tech may have hereunder or at law.
- Assignment. Licensee may not assign this EULA without Ozone Story Tech’s prior written consent, and any such assignment shall be deemed null and void. Subject to the foregoing, all rights and obligations of the parties under this EULA shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
- Publicity. Except as otherwise permitted herein, licensee and Ozone Story Tech agrees that no press releases, social media posts, or other publicity to the substance of the matters contained herein will be made without written approval by both parties.
- Independent Contractor. The parties are independent contractors. This EULA shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
- Waiver & Severability; Amendments. The failure of either party to this EULA to enforce any provision of this EULA shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this EULA is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this EULA will remain in full force and effect. This EULA may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
- Notices. Except as otherwise provided in this EULA, all notices to licensee will be given in writing to the email or mailing address listed on the applicable License Agreement. Notices to Ozone Story Tech shall be delivered to: 7345 Piute Creek Dr, Corona, CA 92881. Notices to may be delivered personally, or may be sent by email, expedited delivery, or certified mail, return receipt requested, to the notice addresses above, unless licensee or Ozone Story Tech are subsequently notified of any change of address. Any notice shall be deemed to have been received as follows: (a) by personal delivery or expedited delivery, upon receipt; (b) by email, one business day after transmission or dispatch; (c) by certified mail, as evidenced by the return receipt.
- Entire Agreement. This EULA constitutes the entire agreement between the parties with respect to its subject matter and supersede and cancel all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This EULA prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation, or other document issued by licensee before or after the execution of this EULA unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this EULA are for convenience and are not for use in interpreting this EULA.
Last updated November 6, 2023.
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