This END USER LICENSE AGREEMENT ("Agreement") governs your use of all software and related materials and information made available by or received by you directly or indirectly from Milk Studio with a place of business at 529 West 20th St.,New York City, NY, 10011, U.S.A.. Customer desires to use the software and related materials and information and Milk Studio is willing to permit Customer to use the software and related materials and information subject to the terms and conditions set forth in this Agreement. The person or entity with which you seek to access and use the software and related materials and information made available in connection with this Agreement shall be referred to as the "Customer."
TO USE OR ACCESS ANY MILK STUDIO PRODUCT, YOU MUST AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING "I ACCEPT" WHERE INDICATED. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU HAVE NO RIGHT OR AUTHORITY TO ACCESS OR USE THE SOFTWARE AND RELATED MATERIALS AND INFORMATION OR EXERCISE ANY OTHER RIGHT IN CONNECTION THEREWITH.
Customer represents and warrants that you are duly authorized to enter into this Agreement on behalf of Customer and to legally bind Customer to this Agreement.
1. License. Milk Studio hereby grants to Customer, and Customer hereby accepts, a limited, terminable, revocable, nontransferable, nonexclusive, nonsublicenseable license to use the photo editing software, including without limitation all modifications, revisions, and releases, and related materials and information, provided or made available by Milk Studio to Customer (collectively, the "Milk Studio Product") for its internal business purposes in accordance with the terms and conditions of this Agreement solely in connection with the web site located at www.milkworkflow.com and subject to the Terms and Conditions.
2. Proprietary Rights. All technical and non-technical information including without limitation, patent, copyright, trade secret, and proprietary information, inventions, know-how, processes, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Milk Studio, including without limitation, the Milk Studio Product, in whatever form disclosed ("Milk Studio Proprietary Information") provided to Customer pursuant to this Agreement are provided on a strictly confidential and limited use basis. All rights, including without limitation, intellectual property rights, title, and interest lie exclusively with Milk Studio. This Agreement is not an agreement of sale, and no title or intellectual property rights or other ownership rights to the Milk Studio Proprietary Information are transferred to Customer pursuant to this Agreement. Customer acknowledges that the Milk Studio Proprietary Information, all future updates modifications, revisions, and releases of the Milk Studio Product, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Milk Studio, having great commercial value to Milk Studio. Customer acknowledges that the restrictions in this Agreement are reasonable and necessary to protect Milk Studio's legitimate business interests. Customer shall promptly notify Milk Studio if Customer learns of any unauthorized use of any Milk Studio Product or intellectual property rights. Customer shall provide all cooperation and assistance requested by Milk Studio in connection with or related to Milk Studio's efforts to protect its intellectual property rights.
3. Prohibited Uses. Except as expressly permitted above, Customer shall not do, nor shall it permit any third party to do, any of the following: (a) use, disclose, distribute, or access any Milk Studio Proprietary Information for any purpose or in any manner not specifically and expressly authorized by this Agreement; (b) modify, adapt, translate or create derivative works based upon any Milk Studio Proprietary Information, without the prior written consent of Milk Studio; (c) re-engineer, reverse engineer, decompile, or disassemble the Milk Studio Product or create or recreate the source code for the Milk Studio Product; (d) remove, erase, or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Milk Studio Proprietary Information, or fail to preserve all copyright and other proprietary notices in any Milk Studio Proprietary Information; (e) refer to or otherwise use any Milk Studio Proprietary Information as part of any effort to develop software or services having any functional attributes, content, visual expressions or other features similar to those of the Milk Studio Product or to compete with Milk Studio; (f) sell, market, license, sublicense, distribute or otherwise grant to any person or entity, including any customer, end user, vendor, consultant, or partner, any right to use any Milk Studio Proprietary Information or component thereof, whether on Milk Studio's behalf or otherwise, without agreeing to the terms of this Agreement; or (g) attempt to do any of the foregoing. Any and all rights in and to the Milk Studio Proprietary Information and otherwise, not explicitly granted to Customer under this Agreement, are expressly reserved by and to Milk Studio, and Customer shall not exercise any rights in or to the Milk Studio Proprietary Information or otherwise, except to the extent explicitly stated in this Agreement.
4. Term and Termination. The term of this Agreement shall be one year, unless terminated earlier in accordance with this Agreement. This Agreement shall automatically renew for a renewal terms of one year, unless either party provides notice of non-renewal no later than thirty (30) days prior to the end of current term. Either party may terminate this Agreement upon written notice to the other party if the other party breaches or is in default of any obligation under this Agreement which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days of the other party's receipt of written notice thereof. Without limiting any rights or remedies available to Milk Studio, Milk Studio may terminate this Agreement immediately upon written notice to Customer in the event Customer breaches Sections 1, 2, or 3 of this Agreement. Milk Studio may terminate this Agreement at any time without cause upon thirty (30) days prior written notice to Customer. Upon the expiration or termination of this Agreement, whether under this Section 4 or otherwise, Customer shall discontinue all use of the Milk Studio Product. Notwithstanding any expiration or termination of this Agreement, Sections 2, 3, 6, 7, 8, 12, and 16 survive any expiration or termination of this Agreement.
5. Contingent Rights. Customer acknowledges and agrees that Milk Studio's ability to grant the rights and licenses granted to Customer under this Agreement may be contingent upon rights and licenses ("Third Party Licenses") being obtained by Milk Studio from third parties and remaining unchanged and in full force and effect throughout the term of this Agreement and thereafter. Should any one or more Third Party Licenses be cancelled, terminated, rescinded, not renewed, or, as applicable, changed, Customer's rights to use all or, as applicable, the affected portions of the Milk Studio Product shall automatically and without notice terminate or, as applicable, change to the extent necessary or appropriate under the applicable Third Party License, which termination or change shall not constitute a breach by Milk Studio of any of its obligations under this Agreement.
6. Disclaimers. THE MILK STUDIO PRODUCT AND ANY OTHER PRODUCT, SERVICE, OR INFORMATION OFFERED BY MILK STUDIO UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE OFFERED "AS IS" AND "WITH ALL FAULTS." MILK STUDIO MAKES NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE MILK STUDIO PRODUCT AND ANY OTHER PRODUCT, SERVICE, OR INFORMATION OFFERED BY MILK STUDIO UNDER OR IN CONNECTION WITH THIS AGREEMENT, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, THAT THE MILK STUDIO PRODUCT WILL BE ERROR-FREE, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. The warranties described in this Agreement are solely for the benefit of the parties to this Agreement and neither Customer nor any other person or entity, either through delegation, by transfer, or otherwise, shall have any rights under this Agreement.
7. Limitation of Liability. NEITHER MILK STUDIO NOR ITS THIRD PARTY VENDORS SHALL BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR LOST PROFITS, WHICH MAY OR DO RESULT FROM OR RELATE TO THE USE OF, ACCESS TO, OR INABILITY TO USE THE MILK STUDIO PRODUCT OR ANY OTHER PRODUCTS, SERVICES, AND INFORMATION OFFERED BY MILK STUDIO UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE RECALL OR REISSUE OF ANY MILK STUDIO PRODUCT, OR THE FAILURE OF MILK STUDIO TO PROVIDE THE MILK STUDIO PRODUCT FOR ANY REASON AT ANY TIME INCLUDING BUT NOT LIMITED TO TERMINATION OF AGREEMENTS WITH MILK STUDIO'S LICENSORS, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT ANY PARTY HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF MILK STUDIO TO CUSTOMER OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE MILK STUDIO PRODUCT OR ANY OTHER PRODUCTS, SERVICES, AND INFORMATION OFFERED BY MILK STUDIO UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL OF ALL AMOUNTS PAID BY CUSTOMER TO MILK STUDIO OR ITS AGENTS FOR THE RIGHT TO USE AND ACCESS THE MILK STUDIO PRODUCT, DURING THE SIX-MONTH PERIOD PRECEDING THE DATE THE EVENTS GIVING RISE TO THE LIABILITY AROSE.
8. Indemnification. Customer shall indemnify and hold harmless Milk Studio and its directors, officers, employees, agents, and contractors ("Indemnitees") from and against all actions, suits, hearings, and other proceedings of third parties ("Claims"), and all judgments, losses, obligations, risks, awards, settlements, compromises, liabilities, damages, costs, and expenses (including without limitation, reasonable attorneys' fees and attorneys' disbursements) arising out of or incurred in connection with (a) any actual or alleged breach of this Agreement or use of the Milk Studio Product by Customer, or its directors, officers, customers, employees, agents, representatives, or contractors and (b) Customer's fraud, negligence, or willful misconduct in connection with this Agreement or its use of or access to Milk Studio Product. Milk Studio shall have the right to control the settlement of any Claims with respect to which it is entitled to indemnification hereunder.
9. Force Majeure. Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to acts of God, public enemy, civil war, strikes or labor disputes, or any other cause beyond the party's reasonable and actual control. Each party agrees to notify the other party promptly of the occurrence of any such cause and to carry out this Agreement as promptly as practicable after such cause is terminated.
10. Assignment. Customer may not sublicense, assign, or transfer this license, in whole or in part, without Milk Studio's prior written consent. Any attempted assignment in violation of this Section shall be void. Milk Studio may transfer and assign this Agreement upon written notification to Customer without consent.
11. Independent Contractor. Milk Studio and Customer are each independent contractors and neither party shall be, nor represent itself to be, the franchiser, partner, broker, employee, servant, agent, or legal representative of the other party for any purpose whatsoever. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party, or to bind the other party in any manner or thing whatsoever. The parties do not intend to form a partnership or joint venture as a result of this Agreement.
12. Records and Audits. Customer will maintain accurate and complete records reasonably sufficient to document and record its compliance with the terms and conditions of this Agreement. Milk Studio shall have the right to audit Customer's books and records for purposes of confirming Customer's compliance with the terms of this Agreement.
13. Compliance with Laws. Customer shall be responsible, at its expense, for complying with all applicable laws and regulations of each jurisdiction in which the Milk Studio Product are accessed or used, including without limitation laws and regulations pertaining to (a) exports or imports of the Milk Studio Product and related property, (b) use or remote use of the Milk Studio Product and related property, and (c) the registration of this Agreement.
14. General. This Agreement and all matters arising out of or related to this Agreement shall be governed exclusively by the laws of the Sate of New York, U.S.A., without regard to conflicts of laws provisions, and the exclusive jurisdiction and venue for any and all disputes arising out of this Agreement or related to the Milk Studio Product are in the New York state courts located in New York City, New York, and the U.S. federal courts located in New York City, Pennsylvania. THIS AGREEMENT WILL NOT BE GOVERNED BY THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS OR THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS AND CONDITIONS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any and all prior oral or written communications, proposals, representations, and agreements. It may be amended only by mutual agreement expressed in writing and signed by both parties, and any attempted amendment in violation of this Section shall be void. Section headings are for reference only and shall not affect the interpretation of this Agreement. The waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement. Should any term or provision of this Agreement be held to any extent unenforceable, invalid, or prohibited under law, then such provision shall be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this Agreement. Notwithstanding the foregoing, if Sections 1, 2, or 3 of this Agreement are held to be unenforceable, invalid, or prohibited under law, then Milk Studio may terminate this Agreement immediately.
128119.00101/11704554v.1
7.Disclaimer of Warranty and Liability
THE SITES, THE SITE MATERIALS AND USER MATERIALS ON, IN, AND MADE AVAILABLE THROUGH THE SITES, AND THE SERVICES, INFORMATION, INCLUDING BUT NOT LIMITED TO RATING INFORMATION, AND PRODUCTS OFFERED IN CONNECTION WITH THE SITES ARE MADE AVAILABLE "AS IS" AND "WITH ALL FAULTS." USE OF THE SITES IS ENTIRELY AT YOUR OWN RISK.
MILK STUDIO MAKES NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITES, THE USER MATERIALS, THE SITE MATERIALS, THE SERVICES, PRODUCTS, INFORMATION, MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITES, INCLUDING BUT NOT LIMITED TO RATING INFORMATION, AND PRODUCTS OFFERED IN CONNECTION THE SITES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL USER MATERIALS, THE SITE MATERIALS, THE SERVICES, PRODUCTS, INFORMATION, MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITES, IS WITH YOU.
MILK STUDIO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITH BUT NOT LIMITED TO, LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SITES, THE USER MATERIALS, THE SITE MATERIALS, THE SERVICES, PRODUCTS, INFORMATION, MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT ANY PARTY HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF MILK STUDIO TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITES, THE SITE MATERIALS ON, IN, AND MADE AVAILABLE THROUGH THE SITES, OR THE SERVICES, INFORMATION, OR PRODUCTS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING TWO MONTHS FOR USE OF THE SITES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF MILK STUDIO SHALL NOT EXCEED TEN DOLLARS ($10).
8.Corrections and Changes
Milk Studio endeavors to keep the Site and Site Materials on, in, and through the Site up-to-date. Without limiting anything else in these Terms and Conditions or otherwise, Milk Studio is not responsible for any errors or omissions in the Site or Site Materials. Milk Studio may make changes to the Site or Site Materials, or to the products, information, or services made available in connection with the Site, at any time, and Milk Studio makes no commitment to update the information contained on or in the Site. Milk Studio reserves the right to terminate your access to the Site in the event that you violate these Terms and Conditions or for any reason whatsoever or no reason, with or without notice, in addition to any and all other remedies available at law or in equity.
9.Indemnification
You shall defend Milk Studio and its directors, officers, employees, agents, and contractors ("Milk Studio Indemnitees") against all claims, actions, suits, and other proceedings ("Claims") arising out of or incurred in connection with the Site and your use of the Site, your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, the User Materials, the Site Materials, the services, products, information, materials on and in and made available through the Site, (except to the extent attributable to Milk Studio), or any breach by you of these Terms and Conditions and shall indemnify and hold Milk Studio Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including, but not limited to, reasonable attorneys' fees and attorneys' disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of Milk Studio.
Milk Studio may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Milk Studio does not notify you within 30 days after notice of the Claim that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to the Milk Studio, subject to the right of Milk Studio to assume, at its sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
10.Complaint Procedure
If you believe that any photographs or content on the Site violate your intellectual property or other rights, please send to Milk Studio support@milkworkflow.com a comprehensive detailed message setting forth the following information: (1) your name and the name of your company, if any; (2) your contact information, including your e-mail address; (3) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (4) the following statement: "The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message."
11.Use of the Internet
Use of the Internet is solely at your own risk and is subject to all applicable local, state, national, and international laws and regulations. Without limiting anything else in these Terms and Conditions or otherwise, neither Milk Studio nor its contractors will be liable for any loss resulting from failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, or governmental restrictions.
12.Governing Law and Jurisdiction
These Terms and Conditions represent the entire agreement between you and Milk Studio with respect to the subject matter hereof, and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law rules; PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS AND CONDITIONS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW. By accessing, viewing, or using the works, content, or materials on the Site, you consent to the exclusive jurisdiction of the federal and state courts presiding in New York City, New York, and agree to accept service of process by personal delivery or mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
13.Miscellaneous
The Site is controlled and operated from within the United States. Without limiting anything else, Milk Studio makes no representation that the works, content, materials, services, information, or products available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of Milk Studio to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms and Conditions. Headings used in these Terms and Conditions are for reference only and shall not affect the interpretation of these Terms and Conditions. The waiver or failure of Milk Studio to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms and Conditions.
Effective July 1, 2013.
Last updated: July 1, 21013
Copyright © 2013 MilkStudio. All rights reserved.
Home Support Contact Terms of Use EULA