Last updated: August 2021
sign pro PDF – End User License Agreement
This End User License Agreement (this "Agreement") is between you (both the individual clicking to accept this Agreement and any legal entity on whose behalf such individual is acting) ("You" or "Your") and Wacom Co., Ltd., 2-510-1 Toyonodai, Kazo-shi, Saitama 349-1148, Japan ("Wacom").
IMPORTANT – THIS IS A LEGAL DOCUMENT BETWEEN YOU AND WACOM REGARDING YOUR USE OF WACOM’S PROPRIETARY SOFTWARE KNOWN AS “SIGN PRO PDF” (THE “WACOM SOFTWARE,” AS FURTHER DEFINED BELOW). IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THIS AGREEMENT. BY CLICKING TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT WHEN PROVIDED THE OPPORTUNITY TO DO SO OR BY OTHERWISE DOWNLOADING, INSTALLING OR USING THE WACOM SOFTWARE (INCLUDING THROUGH THE USE OF ANY LICENSE KEY PROVIDED BY WACOM), YOU: (1) SIGNIFY THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (2) EXPRESSLY AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE WACOM SOFTWARE.
You acknowledge and agree that in order to enter into this Agreement with Wacom, You must be 18 years old or the equivalent minimum age in the relevant jurisdiction.
If You agree to the terms and conditions of this Agreement, You have the following rights, obligations and responsibilities:
- “Affiliate(s)” means a party’s direct or indirect subsidiaries, and any other entity or joint venture directly or indirectly controlling, controlled by, or under common control with such party. For purposes of this definition only, “control” means: (a) direct or indirect beneficial ownership of fifty percent (50%) or more (or such lesser percentage which is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) of the voting stock or shares entitled to vote on or direct the affairs of such entity; or (b) the possession, directly or indirectly, of the right or power to direct or cause the direction of the policies or management of such entity, whether by ownership of stock, by contract or otherwise. An entity is an “Affiliate” for purposes of this Agreement only so long as it satisfies this definition.
- “Authorized User” means an individual authorized by You to use the Wacom Software through the assignment of a single user ID, regardless of whether or not the individual is using the Wacom Software at any given time. A non-human operated device is counted as a user in addition to all individuals authorized to use the Wacom Software, if such device can access the Wacom Software.
- “Documentation(s)” means the instructions, manuals and diagrams, in printed and/or electronic media, provided to You in connection with the Wacom Software.
- “Your Application(s)” means a software application or other device that You independently have or may develop or acquire rights in and with which You may combine or use the sign pro PDF API during the applicable license term.
- “sign pro PDF API” means the sample software code, and an integrable software application in binary code only, including any related materials, new versions, new releases, upgrades or bug-fixes that are made available by Wacom under this Agreement.
- “sign pro PDF App” means a software application, in binary code only, including any related materials, new versions, new releases, upgrades or bug-fixes that are made available by Wacom under this Agreement.
- “Wacom Software” means, collectively, the sign pro PDF API and the sign pro PDF App. Notwithstanding the preceding sentence, if a Section of this Agreement references only the sign pro PDF API or the sign pro PDF App individually, then that Section applies only to the sign pro PDF API or the sign pro PDF App, as applicable.
- License Grant.
- License Grant.
Subject to Your payment of the applicable fees, if any, and Your strict compliance with the terms and conditions of this Agreement, Wacom hereby grants to You, during the term of this Agreement, a limited, revocable, non-exclusive, non-transferrable, non-sublicensable license to:
- (i) use, reproduce, execute, access and install the sign pro PDF App, solely and exclusively for Your internal business purposes, provided You maintain record keeping systems sufficient to track the number of active users of the sign pro PDF App, and ensure that the sign pro PDF App is removed from all Authorized Users’ devices when each such Authorized User’s employment or agreement is terminated or expires;
- (ii) make a single back-up copy of the sign pro PDF App, to be used solely for Your back-up purposes, provided that all trademark, copyright, and other proprietary and restricted rights notices, legends, and symbols included in the original version of the sign pro PDF App is reproduced on such back-up copy;
- (iii) use the sign pro PDF API solely to develop, test and operate Your Applications, provided You maintain record keeping systems sufficient to track the number of active users of the sign pro PDF API, and ensure that the sign pro PDF API is removed from all Authorized Users’ devices when each such Authorized User’s employment or agreement is terminated or expires;
- (iv) use, reproduce, execute, access and install any sample software and any integratable software application(s) included as part of the sign pro PDF API, in object code form only, as part of Your Applications, solely and exclusively for Your internal business purposes, provided You maintain record keeping systems sufficient to track the number of active users of the sign pro PDF API, and ensure that the sign pro PDF API is removed from all Authorized Users’ devices when each such Authorized User’s employment or agreement is terminated or expires;
- (v) distribute and sublicense any sample software and the integratable software application included as part of the sign pro PDF API, in object code form only, as part of Your licensing and distribution of Your Applications, provided You maintains record keeping systems sufficient to track the number of active users of the sign pro PDF API in entities to which You distribute and license Your Applications; and
- (vi) use the Documentation in support of Your authorized use of the Wacom Software.
- Use by Affiliates.
The license rights granted in Section 2.a above may be exercised by You and/or by and through Your Affiliates, provided that, You acknowledge and agree that: (i) You shall remain liable for the acts and/or omissions of Your Affiliates hereunder; (ii) Your obligations and responsibilities under this Agreement shall extend to and apply to Your Affiliates to the same extent they apply to You; and (iii) any breach of this Agreement by any of Your Affiliates shall be deemed a breach of this Agreement by You.
- (i) The license rights granted herein are subject to and limited to the extent of Your payment of the applicable fees, if any. Wacom or its authorized resellers may offer different license models for the use of the Wacom Software (e.g., with fees charged by number of signatures processed using the Wacom Software, by duration of use of the Wacom Software, or by other means), and the fees charged by Wacom may be modified or changed at any time in Wacom’s sole discretion with immediate effect, provided that, for purposes of clarity, neither Wacom nor its authorized resellers may modify the license model or fees during the term of any then current subscription without Your consent.
- (ii) When Your use of the Wacom Software requires the payment of a fee, You will have the opportunity to review and accept the fees that You will be charged. If You do not agree to pay the fee, do not proceed with Your transaction. You acknowledge and agree that, except as otherwise set forth herein (including with respect to warranty claims or claims for damages):
(1) fees are based on the license rights purchased and are not reduced if the actual usage is less than the authorized extent of the license; and
(2) payment obligations are non-cancellable and fees paid are non-refundable except to the extent warranty or damage claims apply (as set out below).
- Ownership and Reservation of Rights.
The Wacom Software is licensed and not sold. Wacom and/or its affiliates or licensors will and do retain all right, title and interest in and to the Wacom Software, and any and all patent, copyright, trademark, trade secret, and any other intellectual property or industrial rights in and to or relating to the Wacom Software, including any modifications, improvements, updates, and derivative works thereof or thereto. Wacom reserves all rights and interests in and to the Wacom Software and all other Wacom intellectual property rights that are not expressly granted to You under this Agreement, and You do not acquire any other rights, whether express, implied or otherwise, in the Wacom Software or any other Wacom intellectual property rights or technology other than those rights expressly granted under this Agreement.
- Restrictions and Obligations.
- Permitted Use. Wacom will provide You a license key so as to enable You to download and install the Wacom Software. However, you may only use the license key to download and install the Wacom Software on the number of computers expressly agreed between Wacom and You. If You use the license key in excess of the license rights purchased by You, Wacom may disable the license key. You agree to keep the license key confidential and to not transfer or provide the license key to any third party.
- Restrictions. You will not, and will not permit, encourage, or enable any third party to, except as expressly permitted hereunder: (i) sell, sublicense, rent loan or lease any portion of the Wacom Software (and/or any license key with respect thereto) to any third party; (ii) modify, disassemble, decompile or reverse engineer any part of the Wacom Software; (iii) copy (except for reasonable backup purposes and with all labelling and proprietary rights notices intact, as authorized in this Agreement) or otherwise reproduce the Wacom Software, in whole or in part, or modify, adapt, alter, translate or incorporate into or with other software or technology or create a derivative work of any part of, the Wacom Software, except as expressly permitted herein; (iv) remove, modify, or otherwise tamper with proprietary rights notices or legends on the Wacom Software; (v) use the Wacom Software in any manner to provide service bureau, time sharing or other computer services to third parties; (vi) distribute the Wacom Software (other than the distributable elements of the sign pro PDF API used or incorporated in Your Applications in accordance with this Agreement) or any license key with respect thereto; (vii) use the Wacom Software in or as part of the development of any product or service that is competitive with or similar to the Wacom Software; or (viii) disclose the results of any performance benchmark or similar testing of the Wacom Software to any third party without Wacom’s prior written consent.
- Your Applications.
The license rights granted in Section 2.a(iii) through (v) above grant you the right to use the sign pro PDF API in connection with Your Applications. You agree as follows with respect to Your Applications:
- (i) Your Applications shall not substantially replicate the functionality of the products or services offered by Wacom. Subject to the preceding sentence and Your other obligations and responsibilities under this Agreement, You may develop and distribute Your Applications that are similar to or that otherwise compete with Wacom products or services provided that Your Applications add substantial additional functionality beyond the functionality available through Wacom’s products or services.
- (ii) You acknowledge and agree that You are solely responsible for, and that Wacom has no responsibility or liability of any kind in connection with, the content, development, operation, support or maintenance of any of Your Applications. Without limiting the foregoing, You will be solely responsible for: (1) the technical installation and operation of Your Applications; (2) creating and displaying information and content on, through or within Your Applications; (3) ensuring that Your Applications do not violate or infringe the intellectual property rights of any third party; (4) ensuring that Your Applications are not offensive, profane, obscene, libelous or otherwise illegal or in violation of applicable laws; (5) ensuring that Your Applications do not contain or introduce any virus, Trojan horse, worm, software lock, drop dead device or any other limiting routine or harmful code into any Wacom or end-customer IT systems, networks, hardware or software; and (6) ensuring that Your Applications are not designed to or utilized for the purpose of spamming end users or any third parties.
- (iii) You acknowledge and agree that You are solely responsible for providing all support and technical assistance to end-customers of the Your Applications. Wacom has no obligation to provide such support or technical assistance to end-customers or their users, and You agree not to represent to end-customers or their users that Wacom is available to provide such support or technical assistance.
- (v) You agree to cause each end-customer to whom You provide or distribute Your Applications to agree to a binding end user license agreement including terms and conditions that are at least as protective of the sign pro PDF API and Wacom’s intellectual property rights associated therewith or embodied therein as the terms and conditions of this Agreement. Such agreement shall further disclaim any and all representations and warranties on the part of Wacom, and exclude and disclaim all liability of any kind on the part of Wacom.
You will be solely responsible for the testing and evaluation of the Wacom Software for Your purposes. You acknowledge that it is technically not possible to develop software and other computer programs which are entirely free of technical issues. In the event that You identify any technical issue with Wacom Software, whether alone or as part of any of Your Applications, You shall promptly report such issue in writing to Wacom. Wacom shall not have any obligation to remedy any issue reported by You.
- Wacom APIs.
The license rights granted in Section 2.a(iii) through (v) above include the right to make calls to certain APIs owned or controlled by Wacom and included as part of the sign pro PDF API (the “Wacom APIs”).The parties agree as follows with respect to the Wacom APIs:
- (i) You shall not: (1) under any circumstances, use the Wacom APIs in any manner that does or could potentially undermine the security of the Wacom APIs, or interfere with, modify or disable any features, functionality, or security controls of the Wacom APIs (or attempt to do any of the foregoing); or (2) exceed rate or call limits in connection with the Wacom APIs, as determined by Wacom.
- (ii) Wacom shall use commercially reasonable efforts to make the Wacom APIs available for use and/or access with an average availability of 99.5% on a monthly basis (“Availability Goal”), excluding scheduled maintenance, failures of the Internet generally, and other causes beyond Wacom’s reasonable control. In the event the Wacom APIs become unavailable for access and/or use in any manner that fails to meet the Availability Goal (other than as a result of scheduled maintenance, failures of the Internet generally, and/or other causes beyond Wacom’s reasonable control), Wacom shall (subject to Section 11 (Regional Variations)), at its option, either: (1) use commercially reasonable efforts to restore such availability on a go-forward basis; or (2) provide an equitable refund or credit to You for any license fees paid by You with respect to the sign pro PDF API, based on the extent to which the unavailability of such Wacom APIs has materially affected Your ability to make use of the sign pro PDF API, as determined by Wacom in its sole and absolute discretion. SUBJECT TO SECTION 11 (REGIONAL VARIATIONS), THE FOREGOING REMEDIES ARE YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT FOR ANY UNAVAILABILITY OF THE WACOM APIS. YOU ACKNOWLEDGE AND AGREE THAT EXCEPT AS OTHERWISE SET FORTH HEREIN, WACOM SHALL HAVE NO LIABILITY TO YOU AND/OR TO ANY THIRD PARTY WITH RESPECT TO ANY SUCH UNAVAILABILITY.
- Compliance with Laws; Privacy.
To the extent the Wacom Software displays Wacom’s trademarks, trade names, logos or other branding (the “Wacom Marks”), Wacom hereby grants to You a limited, non-exclusive, non-transferrable, non-sublicensable, revocable, royalty-free license, during the term of this Agreement only and subject to the terms and conditions set forth herein, to display the Wacom Marks as part of the normal operation of the Wacom Software. You acknowledge Wacom’s ownership of and exclusive rights in and to the Wacom Marks and all goodwill associated therewith, and acknowledge and agree that any and all use of the Wacom Marks shall inure to the sole and exclusive benefit of Wacom. You agree not to take any action or engage in any conduct that is inconsistent with or contrary to Wacom’s sole and exclusive rights in and ownership of the Wacom Marks. Wacom does not grant You any other rights to use the Wacom Marks, whether by implication, estoppel or otherwise.
- Support Services.
Subject to Section 11 (Regional Variations) below, Wacom is not obligated under this Agreement to provide any technical support for the Wacom Software. If any such technical support is provided, such support is provided “AS IS”, with all faults, and without representations or warranties of any kind.
- If Wacom, in order to maintain the conformity of the Wacom Software to its contractual requirements hereunder, or otherwise at its discretion, makes available to You updates or upgrades to the Wacom Software, then the terms and conditions of this Agreement will govern any such updates or upgrades, except that where Wacom, in its discretion, provides any such upgrades or updates, such updates or upgrades may be accompanied by a separate set of terms which You will be asked to accept as a condition to receiving the update or upgrade. Such separate terms will govern and control the use of the upgrades or updates, including without limitation, to the extent of any conflict with or terms that are in addition to this Agreement.
- You acknowledge and agree that any modifications or changes to the sign pro PDF API may have an adverse effect on Your Applications. Wacom shall have no liability of any kind to You or to any third party with respect to such modifications or changes or any adverse effects resulting from any such modifications or changes. Except as otherwise expressly set forth in this Agreement (including Section 11 (Regional Variations) below), Wacom and/or its licensors are under no obligation to install, maintain or support Wacom Software.
SUBJECT TO SECTION 11 (REGIONAL VARIATIONS) BELOW, THE WACOM SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS.WACOM AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WACOM DOES NOT REPRESENT OR WARRANT THAT THE WACOM SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE WACOM SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM(S), OR THAT THE USE OF THE WACOM SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT(S), INCLUDING BUT NOT LIMITED TO, PATENTS, UTILITY MODELS, TRADEMARKS OR COPYRIGHTS, OR THAT DEFECTS IN THE WACOM SOFTWARE WILL BE CORRECTED.FURTHERMORE, WACOM AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE USE BY YOU OF THE WACOM SOFTWARE (INCLUDING THE RESULTS GENERATED BY SUCH USE), INCLUDING WITHOUT LIMITATION, THE CORRECTNESS, ACCURACY, QUALITY, CURRENTNESS, OR RELIABILITY OF THE WACOM SOFTWARE OR ANY CORRESPONDING RESULTS, OR THE APPROPRIATENESS OF THE WACOM SOFTWARE OR ANY CORRESPONDING RESULTS FOR A PARTICULAR TASK OR APPLICATION, OR OTHERWISE.WACOM DOES NOT WARRANT THAT YOU WILL BE ABLE TO DEVELOP OR MAKE YOUR APPLICATIONS USING THE SIGN PRO PDF API.NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WACOM OR ITS REPRESENTATIVES SHALL CREATE A REPRESENTATION OR WARRANTY ON THE PART OF WACOM WITH RESPECT TO THE WACOM SOFTWARE. For clarity, Section 11 (Regional Variations) remains unaffected. For further warranty information, You may contact Wacom’s Customer Support at http://support.wacom.com.
- Limitation of Liability.
SUBJECT TO SECTION 11 (REGIONAL VARIATIONS) BELOW, IN NO EVENT WILL WACOM AND/OR ITS AFFILIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE, OR COST OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT (INCLUDING AN ACTION IN CONTRACT OR TORT), AND REGARDLESS OF WHETHER WACOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. YOU ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH WACOM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. IN THE EVENT OF ANY CLAIM RELATED IN ANY WAY TO THIS AGREEMENT OR THE WACOM SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT WACOM’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE AMOUNT OF: (a) ONE THOUSAND U.S. DOLLARS (U.S. $1,000); OR (b) THE AMOUNTS PAID BY YOU TO WACOM IN CONNECTION WITH YOUR USE OF THE WACOM SOFTWARE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION FOR WHICH SUCH DAMAGES ARE ALLEGED TO BE OWED. NOTHING IN THIS SECTION EXCLUDES OR LIMITS WACOM’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NOTWITHSTANDING THE ABOVE, NOTHING IN THIS AGREEMENT LIMITS WACOM'S LIABILITY TO YOU IN THE EVENT OF: (i) DEATH OR PERSONAL INJURY TO THE EXTENT RESULTING FROM WACOM'S NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS; OR (ii) ANY FRAUDULENT ACT OR OMISSION OF WACOM OR THAT OF ITS EMPLOYEES OR AGENTS; OR (iii) TO THE EXTENT ARISING OUT OF ANY WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT ON THE PART OF WACOM; OR (iv) UNDER MANDATORY PRODUCT LIABILITY LAWS.
You agree to defend, indemnify and hold harmless Wacom and its Affiliates, and each of their respective officers, directors, agents, and employees, for, from, and against any and all claims, demands, loss, damage, liability, cost, or expense (including, but not limited to, attorneys' fees at trial, on appeal, and on any petition for review), arising out of or related to: (a) Your breach or failure to comply with any Open Source Software license or other third party software license; (b) Your breach of this Agreement; (c) the conduct of Your business; (d) Your use of the Wacom Software or the Wacom Marks; (e) Your Applications (as applicable); or (f) Your infringement, misappropriation, or violation of the intellectual property rights or other proprietary rights of any third party.
- Regional Variations.
This Agreement describes certain legal rights. You may have other rights, including consumer rights, under the laws of Your state, province, or country. Separate and apart from Your relationship with Wacom, You may also have rights with respect to the party from whom You acquired the Wacom Software, if that party is different from Wacom, such as, by way of illustration and not by way of limitation, a Wacom reseller. This Agreement shall not be deemed to change those other rights if the laws of Your state, province, or country do not permit this Agreement to do so. For example, if You acquired Your rights in the Wacom Software in one of the below regions, or if a mandatory country law applies, then the following provisions apply to You and shall take precedence in the event of any conflict with the provisions of this Agreement:
- (i) Availability; Support; Disclaimer (in particular Sections 4.d, 4.e (ii), Section 6 and Section 8).The properly licensed Wacom Software will perform substantially as described in any Wacom materials that accompany the Wacom Software and is subject to any applicable statutory warranty rights. However, Wacom gives no contractual guarantee in relation to the Wacom Software.
- (ii) Limitation of Liability (Section 9).In case of intentional conduct, gross negligence, claims based on the Product Liability Act, as well as death or personal or physical injury, Wacom is liable according to statutory law. If Wacom is liable for slight negligence under statutory law, such liability will be limited as follows: Wacom will only be liable for slight negligence if Wacom is in breach of an essential contractual obligation, and this liability will be limited to typical and foreseeable damages. An essential contractual obligation is an obligation that must be performed in order to achieve the purpose of this Agreement in the first place and on the performance of which You may therefore generally rely.In other cases of slight negligence, Wacom will not be liable for slight negligence. The no-fault liability under sec. 536a (1) of the German Civil Code is excluded (i.e. Wacom is liable in the cases described in that section only if it has acted with negligence or intent).
- (iii) Indemnity (Section 10).Your indemnity obligations only apply to the extent Your conduct amounts to a culpable breach of this Agreement.
- This Agreement commences on the date You click to accept the terms and conditions of this Agreement when provided the opportunity to do so, and will continue in effect until terminated. You may terminate this Agreement by notifying Wacom in writing that You have ceased all use of and have, where applicable, uninstalled the Wacom Software. Additionally, Your rights and licenses under this Agreement will automatically terminate and cease to be effective: (i) without any notice or action by Wacom, upon the expiration of any subscription period for which You have purchased the right to use the Wacom Software; or (ii) in the event that You breach or otherwise fail to comply with any term of this Agreement and fail to cure such breach or non-compliance within ten (10) days of Wacom providing You notice of the breach or non-compliance and demanding that it be cured.
- Upon the termination of this Agreement, You will cease all use of the Wacom Software and permanently delete and make unrecoverable the Wacom Software and all copies thereof (including Your back-up copy and all Documentation) from the device on which was installed. Upon any termination of this Agreement, Sections 3 (Ownership and Reservation of Rights), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification), 11 (Regional Variations), 12.b, 13 (Governing Law and Venue; Governing Language) and 16 (General Terms) will survive.
- Governing Law and Venue; Governing Language.
- Governing Law; Venue.
This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of Japan, except that if You are a consumer habitually residing within the EU, the laws of the state of Your habitual residence apply. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement or the Wacom Software, such controversy, claim, or dispute shall be finally and exclusively settled by arbitration in Tokyo in English language in accordance with the Rules of Arbitration of the International Chamber of Commerce, except that if You are a consumer habitually residing within the EU, the courts of the state of Your habitual residence have jurisdiction.
- ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT AND/OR THE WACOM SOFTWARE SHALL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION.EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- U.S. Government Restricted Rights; Export Restrictions.
- U.S. Government Restricted Rights.
The Wacom Software is a "commercial item," as that term is defined at 48 CFR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 CFR 12.212. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4, all U.S. Government users acquire the Wacom Software with only those rights set forth herein.
- Export Restrictions.
You may not download, export or re-export the Wacom Software: (i) into, or to a national or resident of, any country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Accordingly, You hereby represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is Your sole responsibility to comply with any and all government export and other applicable laws and that Wacom has no responsibility with respect thereto.
- Third Party Software.
- Open Source Software.
You shall not take any action that would require, indicate, or imply that the Wacom Software is or may be licensed under the terms of any Open Source Software license. By way of illustration and not by way of limitation, You shall not use or incorporate the Wacom Software with any Open Source Software licensed under any license terms that: (i) impose or could impose a requirement or condition that the Wacom Software, or any software or source code used or integrated therewith: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of making modifications or derivative works; or (3) be redistributable at no charge; or (ii) otherwise impose or could impose any other material limitation, restriction, or condition on the right or ability of Wacom to use or distribute the Wacom Software, or any software or source code used or integrated therewith. You shall promptly inform Wacom in writing of any Open Source Software use in violation of this Section of which it becomes aware. For purposes of this Section, “Open Source Software” means any software code that is distributed as “free software” or “open source software” or that is otherwise distributed publicly in source code from under terms that permit modification and redistribution of such software.
- Third Party Software.
The Wacom Software may include and use the third party software components listed at https://developer-docs.wacom.com/docs/wa-thirdparty-overview. You acknowledge and agree that such third party software is subject to and governed by the license terms under which such third party software components are licensed and You agree to strictly comply with such license terms. Any breach of such license terms by You shall be deemed a breach of this Agreement.
Subject to Sections 15.a and 15.b above, in exercising the license rights granted to You in this Agreement, You shall strictly comply with the terms and conditions of any Open Source Software licenses and/or other third party software license that may govern or apply to your use of the Wacom Software.
- General Terms.
You agree to keep complete and accurate records with respect to Your use of the Wacom Software sufficient to determine Your compliance with the terms and conditions of this Agreement. Wacom shall have the right to audit and inspect such records upon reasonable prior notice to You, and You agree to reasonably cooperate with Wacom in connection with any such audit and inspection.
If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect.
- No Assignment; One Time Transfer.
You will not transfer, assign, or delegate the Wacom Software or any of Your rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Wacom, which shall not be unreasonably refused, withheld, conditioned or delayed. Any transfer, assignment, or delegation of any of Your rights or obligations under this Agreement in violation of this Section 16.c is void and of no effect.
- Entire Agreement; General.
This Agreement constitutes the entire agreement between You and Wacom and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between You and Wacom. Any heading, caption, or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. The waiver by either party of any default or breach of this Agreement may only be made in writing and will not constitute a waiver of any other or subsequent default or breach.
- Changes to this Agreement.
Wacom may notify You of modifications, changes or amendments (“Amendments”) to this Agreement. In the event the Amendments are necessary to implement changes in applicable law, including case law, or for similarly compelling reasons, and do not modify the Parties’ main performance obligations to Your detriment, the Amendments shall be binding on the parties if You have not objected to them within four (4) weeks of Wacom’s notice of such changes provided to You in written form. Wacom will make the Amendments available and accessible to You in written form in advance of the effective date of such Amendments, and in such notice, Wacom will separately inform You of the four (4) week objection period and the consequences of Your silence. In any other case, any Amendments will be effective only once You have accepted them in a manner such that they are legally binding upon You.
This Agreement is executed in English and any other language versions will be for convenience only.
BY CLICKING TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY AND ANY APPLICABLE THIRD PARTY SOFTWARE COMPONENTS LICENSES; (2) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY, AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT (AND THAT IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU HAVE THE POWER, AUTHORITY, AND LEGAL RIGHT TO BIND SUCH ENTITY AND ENTER INTO THIS AGREEMENT ON SUCH ENTITY’S BEHALF); AND (3) THIS AGREEMENT CONSTITUTES A BINDING LEGAL AGREEMENT ENFORCEABLE AGAINST YOU IN ACCORDANCE WITH ITS TERMS.