Align Technology License Terms
THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN THE PRACTICE / PROVIDER ("LICENSEE") AND ALIGN TECHNOLOGY, INC. ("ALIGN"). THIS AGREEMENT SHALL GOVERN THE LICENSEE'S RIGHTS TO USE ALIGN'S LICENSED MATERIAL(S). LICENSEE'S ACCEPTANCE OF THESE LICENSE TERMS CONFIRMS THAT LICENSEE HAS AUTHORITY TO ENTER INTO THIS AGREEMENT.
1.0 Grant of Rights and Restrictions.
1.1 Align hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable right to use, display, and reproduce Licensed Material for business purposes. For purposes of this Agreement, "Licensed Material" shall mean any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally, or by any other means, including any negatives, transparencies, film imprints, prints, original digital files, or any other product and/or intellectual property that is licensed to Licensee under the terms of this Agreement. This right may be exercised by subcontractors of Licensee (including purchaser) provided that such subcontractors agree to abide by the terms of this Agreement.
1.2 Licensee's rights to use Licensed Material shall be in accordance with the terms set forth herein and any other applicable terms as may be presented, instructed, or disclosed to Licensee by Align or its agents or contractors, including, without limitation, Align's Art & Advertising Standards ("Supplemental Terms"). In the event of conflict between the Supplemental Terms and this Agreement, the terms and conditions of the Supplemental Terms shall prevail and control. Unless additional rights are stipulated in a signed writing, Licensed Material may not be used for any other use. Licensed Material shall not be incorporated into a logo, corporate ID, trade name, trademark, or service mark without obtaining the prior written consent of Align's Legal Department. Further, Licensee shall not modify, alter, overlay, re-focus, or in any way change Licensed Material without the prior written consent of Align's Legal Department. To protect Align's intellectual property rights, Licensee shall reproduce Licensed Material exactly as they appear on Align's Invisalign® Marketing Site or in Align's published product and marketing literature. Licensee may not make Licensed Material available in a manner that would allow or invite a third party to download, extract, redistribute, or access Licensed Material as a standalone file. Licensee shall not use Licensed Material in any advertising, merchandising, marketing, or other materials that are used to sell other branding without obtaining the prior written consent of Align's Legal Department. Any advertising or other postings on any social networking sites or boards, smart phone applications, or search engines must be in compliance with this Agreement.
1.3 Align reserves the right to immediately terminate Licensee's rights under this Agreement and/or the Supplemental Terms at any time for any reason. Upon such termination, Licensee's rights shall automatically be revoked, and Licensee shall discontinue use of Licensed Material and remove any Licensed Material from its platform or website. Further, Licensee will immediately notify Align if it becomes aware of or suspects that any third party that has gained access to Licensed Material through Licensee is wrongfully using Licensed Material, in whole or in part, or is violating any of Align's intellectual property rights, including, without limitation, trademarks and copyrights, or Align's Art & Advertising Standards.
2.0 Credit and Intellectual Property.
2.1 Copyright and Trademarks. No rights of ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the rights contained in this Agreement, except as expressly stated herein. Licensee agrees to include appropriate trademark attribution to identify the owner of the trademarks upon use of the Licensed Material.
2.2 In connection with Licensee's use of the "Align" trademark or any other of Align's trademarks, trade names, logos, or service marks, including the names of all Licensed Material collections, or Licensee's use of the intellectual property of others working with or on behalf of Align (collectively, "Marks"), Licensee acknowledges and agrees that (i) such Marks are and shall remain the sole property of Align or others working with or on behalf of Align; (ii) except as expressly required to satisfy the attribution obligations under this Agreement as set out in Section 2.1 above, nothing shall confer upon Licensee any additional rights of use in or to the Marks; and (iii) Licensee shall not now or in the future contest the validity of the Marks.
3.0 Warranty and Limitation of Liability.
3.1 Align warrants that: (i) the Licensed Material will be free from defects in material and workmanship for thirty (30) calendar days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); and (ii) it has all necessary rights and authority to enter into and perform this Agreement.
3.2 ALIGN DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALIGN SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHER SIMILAR DAMAGES, COSTS, OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF ALIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS, OR LOSSES. ALIGN SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS, OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.
4.1 If Licensed Material is only used in accordance with this Agreement and the Supplemental Terms, and Licensee is not otherwise in breach of this Agreement, as Licensee's sole and exclusive remedy for any breach of the warranties set forth in above, Align shall, subject to the terms hereof, defend, indemnify, and hold harmless Licensee and its parent, subsidiaries, and commonly owned or controlled affiliates and their respective officers, directors, and employees from all damages, liabilities, and expenses (including reasonable outside attorneys' fees) arising out of or as a result of claims by third parties ("Claims") relating to any actual or alleged breach by Align of its warranties set forth above. Align shall have no obligation under this Section 4.1 for any Claims that arise out of or are a result of: (i) Licensee's modification, alteration, overlay, or re-focusing of Licensed Material where the Claim would not have arisen but for the modification, alteration, overlay, or re-focusing made by Licensee; (ii) the context in which Licensed Material is used in a Licensee work where the Claim would not have arisen but for such context; (iii) Licensee's failure to comply with the terms of this Agreement; or (iv) Licensee's continued use of Licensed Material following notice from Align, or upon Licensee's knowledge, that Licensed Material is subject to a claim of infringement of another's rights or Align's rights to sublicense to Licensee have expired. The foregoing states Align's entire indemnification obligation under this Agreement.
4.2 Licensee shall, subject to the terms of Section 4.3 below, defend, indemnify, and hold harmless Align and its parent, subsidiaries, commonly owned or controlled affiliates, and content providers and their respective officers, directors, and employees from all damages, liabilities, and expenses (including reasonable outside attorneys' fees) arising out of or as a result of claims by third parties relating to: (i) Licensee's use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by Licensee of this Agreement; or (iii) Licensee's failure to obtain any required release.
4.3 The party seeking indemnification pursuant to this Section 4 ("Indemnified Party") shall promptly notify the breaching party that is responsible for providing Indemnification ("Indemnifying Party") of such Claim. The Indemnified Party shall allow the Indemnifying Party control over the defense and settlement of the Claim with counsel reasonably satisfactory to the Indemnified Party, in which event the Indemnified Party shall cooperate in the defense and settlement of any such Claim or litigation as may be reasonably requested by Indemnifying Party. Further, the Indemnified Party shall have the right to participate in such litigation, at its expense, through counsel selected by Indemnified Party. Indemnifying Party will not be liable for legal fees and other costs incurred prior to receiving notice of the Claim for which indemnity is sought.
5.0 Governing Law and Jurisdiction.
5.1 This Agreement will be governed in all respects by the laws of the State of California, Santa Clara County, without reference to its laws relating to conflicts of law. If one or more of the provisions contained in the Agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
6.0 General Terms.
6.1 Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
6.2 Entire Agreement. This Agreement is intended for business customers of Align and contains all the terms of the license agreement. Except as set out herein, no terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Align's Legal Department and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.
BrandMuscle END USER LICENSE
IMPORTANT: READ THIS CAREFULLY. This End User License ("End User License") is a legal agreement between you and BrandMuscle, Inc. ("BrandMuscle") granting you certain rights to access and use certain modules ("Modules") of BrandMuscle's software products (the "Software"), together with any user manuals and on-line help function therefore, as BrandMuscle may update them from time to time ("Documentation"). By clicking on the "Accept" button or otherwise accessing or using the Software or any Module, you agree to be bound by the terms of this End User License. If you do not agree to the terms of this End User License, click on the "Cancel" button and do not access or otherwise use the Software or any Module.
1. Authorized User. This End User License is granted by BrandMuscle under and subject to a Master Agreement (the "Agreement") between BrandMuscle and your employer or other legal entity which is licensing access and use of the Software and instructing you to access or use the Software ("Licensee"). You are eligible for the rights granted by this End User License only if you are an Authorized User under the terms of the Agreement, meaning you are an employee of Licensee, a wholly-owned subsidiary of Licensee, or an independent contractor under license to Licensee, such as, e.g., an advertising agency, and who (a) has a need to access a Module of the Software, and (b) has agreed to the terms of this End User License, as modified by BrandMuscle from time to time.
2. License Grant. Subject to the terms of this End User License, the Agreement, and any reasonable policies and procedures agreed upon in writing between Licensee and BrandMuscle, you may (A) access and use Modules of the Software as set forth in the Agreement, and (B) use the Documentation. This grant is non-transferable and non-exclusive.
3. License Restrictions. You may not do any of the following yourself, or through any other person:
A) Copy, modify or create derivative works based upon the Modules, the Software or Documentation;
B) Decompile, disassemble, or reverse engineer the Modules or the Software in whole or in part;
C) Defeat, disable or circumvent any protection mechanism related to the Modules, the Software or Documentation, including without limitation any code which necessitates or solicits agreement to the End User License before use of any Modules;
D) Sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party any portion of the Modules, the Software or the Documentation to any third party other than an Authorized User under the Agreement, or, in particular, without limiting the generality of the foregoing, allow any party to use the Modules or the Software in order to provide services outside the scope of the Agreement; or
E) Export any Module or the Software in violation of any laws or regulations, including U.S. Department of Commerce Export Administration regulations.
4. Title and Ownership. Except for the rights expressly granted above, this End User License transfers to you no right, title, or interest in any Module, the Software, the Documentation, or any copyright, patent, trademark, trade secret or other intellectual property or proprietary right in the Module, the Software or the Documentation. BrandMuscle retains sole and exclusive title to all portions of all Modules, the Software and Documentation and any copies thereof. You agree not to disclose any Module or the Software or the Documentation to anyone other than Authorized Users as defined in the Agreement. The Modules, the Software and the Documentation contain valuable proprietary information the unauthorized use or disclosure of which would irreparably harm BrandMuscle. Upon learning of any unauthorized possession or use of or access to any Module or the Software, you will notify BrandMuscle immediately, will promptly furnish details of such occurrence, will assist in preventing any recurrence thereof, and will cooperate fully in any litigation or other proceedings undertaken to protect the rights of BrandMuscle.
5. Warranty. BRANDMUSCLE PROVIDES VARIOUS LIMITED WARRANTIES TO LICENSEE IN THE AGREEMENT. BRANDMUSCLE MAKES NO WARRANTY OF ANY KIND TO YOU, THE END USER. BRANDMUSCLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRANDMUSCLE SHALL NOT BE LIABLE TO YOU, THE END USER, FOR ANY DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOSS OF USE, COST OF COVER, OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BRANDMUSCLE MAKES EVERY EFFORT TO ENSURE QUALITY AND RELIABILITY. HOWEVER, BRANDMUSCLE DOES NOT MAKE ANY REPRESENTATION THAT DOWNLOADING ANY FILES FROM THIS SITE WILL NOT CAUSE INTERRUPTIONS TO THE USER'S SYSTEM NOR THAT SUCH DOWNLOADED FILES WILL BE ERROR-FREE. EACH USER AGREES TO PERFORM USER'S OWN VERIFICATION OF THE FILES (E.G. SCAN FILES FOR VIRUSES) AND EACH USER AGREES TO DOWNLOAD SUCH FILES AT USER'S OWN RISK. BRANDMUSCLE SHALL NOT BE LIABLE FOR ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, OR FAILURES OF PERFORMANCE, COMPUTER VIRUS OR COMMUNICATION LINE FAILURES, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM. USER AGREES TO USE THE MATERIALS FOR LEGITIMATE PURPOSES AS DIRECTED BY LICENSEE, ITS USERS, OR ADVERTISING AGENCIES.
6. Confidentiality. The terms and conditions of this End User License, the Agreement, and any other information designated by either BrandMuscle or Licensee as "confidential" are confidential and shall not be disclosed by you, orally or in writing, to any third party without the prior written consent of BrandMuscle and Licensee. All Modules, the Software and Documentation are confidential, and you shall protect them and BrandMuscle's other confidential information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which you utilize for your own confidential information.
7. Termination. This End User License shall terminate as set forth in the Agreement which authorizes your use of the Software, unless earlier terminated by BrandMuscle A) upon notice to you, or B) without notice, upon a breach by you of any provision of this End User License.
8. Miscellaneous Terms. This End User License shall be governed by the laws of the State of Ohio, without regard to its choice of law principles. Except as provided in the Agreement, venue of any dispute related to this End User License or any Module or the Software shall rest exclusively in the state or federal courts located in Cleveland, Ohio. All disputes shall be resolved in accordance with the provisions of the Agreement. If any provision of this End User License is held to be unenforceable, this End User License shall be construed without such provision. The failure of BrandMuscle to exercise any of its rights shall not operate as a waiver of its right to exercise such right or any other right in the future.