Last Revised on March 1, 2020
THIS IS A LEGAL AGREEMENT BETWEEN THE CUSTOMER AND ILLUMINE. BY ACCESSING AND/OR USING THE SERVICES, THE CUSTOMER IS AGREEING ON BEHALF OF AN INDIVIDUAL AND OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
The herein contained End User Services Agreement (the “Agreement” or “EUSA”) shall be considered a legally binding agreement between you (an individual or an entity, hereinafter “ “You” or “Your”) and Illumine Industries Inc (“Illumine”) for the use of Illumine Services (defined below).
BY COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE HEREIN CONTAINED TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS EUSA, YOU THEN HAVE NO RIGHTS TO THE SERVICES AND SHOULD THEREFORE NOT COPY, DOWNLOAD, ACCESS NOR USE ANY SERVICES.
THE SERVICES ARE PROTECTED BY COPYRIGHT LAWS, AS WELL AS ANY OTHER INTELLECTUAL PROPERTY LAWS.
1. Definitions and Interpretations.
1.1“Agreement” or “EUSA” means this End User Services Agreement.
1.2 “You” or “Your” means You, the individual or business entity purchasing any Services under of the terms of this Agreement.
1.3 “Intellectual Property” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
1.4 “Person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time, taking account of any amendment or reenactment and includes any statute, statutory provision or subordinate legislation which it amends or reenacts; provided that, as between the Parties, no such amendment or re-enactment shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party.
1.8 A reference to writing or written includes e-mail.
1.9 Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.10 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.11 References to articles, sections, or clauses are to the articles, sections, and clauses of this Agreement.
1.12 “We”, “us” and “our” means Illumine.
2. Sale of Services. Subject to your payment of the entire purchase consideration, Illumine grants You right to use the specific Services that you purchased subject to all the terms and conditions set forth herein. Furthermore, this EUSA shall also govern any and all updates and revisions provided by Illumine that would replace, overwrite and/or supplement the original version of the specific Services purchased by You, unless those other updates and revisions are covered under a separate services agreement, in which case the terms of that agreement will govern.
3. Termination. Should You breach this EUSA, Your right to the use of the Services will immediately terminate and shall terminate without any notice being given. However, all provisions of this EUSA, with the exception of the Sale of Services section above, shall survive termination and will remain in effect.
4. Intellectual Property.
4.1 Protected Offering. The Services are protected by copyright and other Intellectual Property laws and treaties, and as such all rights, title, and interest in and to the content offered, including but not limited to, any photographs, images, diagrams, drawings and specifications, that may be incorporated as part of the offered Services. Such offered Services are protected by copyright laws and international treaty provisions. Therefore, offered Services must be treated as any other copyrighted material, with the exception that it is allowable for You to make copies as provided by this Agreement.
4.2 No Grant of Rights. Except as expressly stated herein, this Agreement does not grant either Party any rights to the other’s content or any of the other’s Intellectual Property. Specifically, Illumine owns all Intellectual Property rights in any pre-existing intellectual property as well as any intellectual property developed in the course of the Services offered, except as otherwise expressly agreed in a signed writing by an officer of Illumine. Notwithstanding the foregoing, You agree to grant Illumine and its employees, contractors and agents a license to use Your Intellectual Property for purposes of providing Services and to make reasonable copies of same for internal use, backup and archival purposes.
4.3 Right of Publicity. You agree, with respect to publicity that: (a) Illumine may include You or its brand in a list of customers, online, or in promotional materials; and (b) Illumine may verbally reference You as a user of the Services.
5. Restrictions on Use. You may not make use of any offered Services in any manner not stipulated within this EUSA or the documentation accompanying the offered Services.
6. Disclaimer of Warranty. ILLUMINE DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER ILLUMINE NOR ANY OFFICER, DIRECTOR, SUBSIDIARY, AFFILIATE, OR EMPLOYEE OF ILLUMINE, MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT. NEITHER ILLUMINE NOR ANY OFFICER, DIRECTOR, SUBSIDIARY, AFFILIATE, OR EMPLOYEE OF ILLUMINE MAKES ANY REPRESENTATION OR WARRANTY ABOUT ANY CONTENT OR INFORMATION INCORPORATED INTO THE SERVICES.
7. Limitation of Liability and Remedies. IN SPITE OF ANY DAMAGES THAT YOU MAY OR MAY NOT INCUR FOR ANY REASON, WHICH MAY INCLUDE, BUT ARE NOT LIMITED TO, ANY AND ALL DIRECT OR GENERAL DAMAGES, THE ENTIRE LIABILITY OF ILLUMINE AND/OR ANY OF THE AFOREMENTIONED ILLUMINE PARTIES COVERED UNDER THE HEREIN CONTAINED PROVISIONS OF THIS EUSA, ALONG WITH YOUR EXCLUSIVE REMEDY WITH REGARDS TO ALL OF THE FOREGOING, SHALL HEREBY BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES DURING THE 6 MONTHS PRECEDING THE CLAIM. THE AFOREMENTIONED LIMITATIONS, EXCLUSIONS AND ANY DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, EVEN SHOULD ANY PROPOSED REMEDY FAIL ITS ESSENTIAL PURPOSE.
8. Export Controls. By using the Services, You hereby agree that You will comply with any and all applicable export laws, restrictions and all regulations of the U.S. Department of Commerce, U.S. Department of Treasury, and any other U.S. or foreign agency or authority with regards to this provision of the EUSA. You expressly agree not to export or re-export, nor allow the export or re-export of the offered content in violation of any such law, restriction or regulation, including without limitation, export or re-export to any country subject to any and all applicable U.S. trade embargoes or to any prohibited destination, in any group specified in the current “Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations).”
9.1 Successors and Assigns. This EUSA, in its entirety, shall be legally binding upon and inure to the benefit of Illumine and You, and Illumine’s successors and assigns.
9.2 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall not be affected.
9.3 Waiver. If there is any waiver of any breach or failure to enforce any of the provisions contained herein, it shall not be deemed as a future waiver of said terms or a waiver of any other provision of this EUSA.
9.4 Amendments. This EUSA may be updated periodically and without prior notice to You to reflect changes in our Services offering practices. We will indicate at the top of this EUSA when it was most recently updated. We encourage you to periodically review this EUSA for the latest information on our Services offering practices.
9.5 Governing Law. This EUSA is governed by the laws of the State of California and of the United States. Should any action arise out of or in relation to this EUSA, such action may be brought exclusively in the appropriate federal or state court in California, and as such, You and Illumine irrevocably consent to the jurisdiction of said court and venue for Alameda County, California.
9.6 Assignments. You may not assign or transfer any part of the Services without the prior written consent of Illumine.
9.7 Valid and Binding. This Agreement constitutes a valid and legally binding obligation of the Parties, enforceable against the Parties in accordance with its terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles.
9.8 Effect of Title and Headings. The title of this Agreement and the headings of sections, and clauses are included for convenience and shall not affect the meaning of this Agreement or any such section or clause.