Terms for Application Use X-Rite Pantone Studio Mobile Application
Effective: July 28, 2016
PLEASE Read the following Terms carefully before using the Application and related Services.
These Terms for Application Use (“Terms”) govern your access to and use of the Pantone Studio mobile application (“App”) provided by X-Rite, Inc. and its wholly-owned subsidiary Pantone LLC (collectively, “X-Rite”, “us” or “we”) as well as specific features and functions that are available through the App (collectively, the “Services”). The Services include ‘free’ Services available with the basic version of the App as well as ‘paid’ Services available that you may acquire on a time-limited subscription basis (currently monthly and annually). (Hereinafter the Term “App” shall mean to include the App and the Services provided through the App)
Acceptance of Terms
When you access or use the App, you represent and warrant that you have read and understood these Terms, and acknowledge that this is a binding legal agreement between you and X-Rite. This agreement becomes effective immediately upon commencement of your use of the App. If you do not agree to the Terms, please discontinue all further use of the App.
Grant of Rights/Limited License
Pursuant to these Terms, X-Rite grants to you a non-exclusive, non-transferable, revocable, and limited personal right and license to install and use the App for your personal, non-commercial purposes. This right and license is conditioned on your continued compliance with these Terms.
You may only use the App on a mobile device that you own or control and in accordance with any terms and conditions of the application store from which you may have acquired/downloaded the App. You may not rent, lease, lend, sell, transfer, redistribute or sublicense the App and, if you seek to sell or otherwise transfer a mobile device on which the App is installed, you must remove the App from such mobile device before completing such sale or transfer.
You retain all rights and ownership of your content.
You grant X-Rite a perpetual, non-exclusive, worldwide, royalty-free, sub-licensable, and transferrable license to use, host, store, copy, reproduce, publicly display, distribute, transmit, modify, publicly perform, adapt and translate any information or content that you generate or transmit using the App, including without limitation, data, images, information, communications, questions, comments or suggestions (collectively “Content”) as needed to operate and improve the App as well as for X-Rite and its affiliates’ lawful business use. This right and license also allows us to make Content available to third parties, and allows us and third parties to use the Content to provide you with customized services.
X-Rite will access, view, or listen to your Content in limited ways. For example, in order to operate and improve the App, we may need to access, view, or listen to your Content to (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (c) enforce these Terms.
Some Services in the App may provide features that allow you to share your Content with other users or to make it public. To ‘share’ means to email, post, transmit, upload, or otherwise make available (whether to X-Rite or other users) through your use of the App. Other users may use, copy, modify, or re-share your Content in many ways including but not limited to various social media platforms integrated with the App. Please consider carefully what you choose to share or make public as you are entirely responsible for the Content that you share. X-Rite does not monitor or control what others do with your Content. You are responsible for determining and notifying other users of the limitations that are placed on your Content and for applying the appropriate level of access to your Content.
We neither endorse nor assume any liability for the contents of any material generated or otherwise transmitted by users of the App. We generally do not pre-screen, monitor or edit Content that may be available on or through the App. We reserve the right to remove any Content that, in our judgment and at our sole discretion, does not comply with these Terms, or is otherwise harmful, objectionable or inaccurate. We are not responsible for any failure or delay in removing such Content. You hereby consent to such removal and waive any claim against us arising out of such removal of Content.
Pantone Color Libraries
As part of the Services (whether ‘free’ or ‘paid’), X-Rite may provide you with access to certain PANTONE Color Libraries for use in connection with the Services. You hereby acknowledge and agree (in addition to all other terms and conditions elsewhere in the Terms) that:
- The PANTONE Color Libraries are licensed and not sold
- Your use of the PANTONE Color Libraries is allowed strictly in conjunction with the applications and/or devices expressly authorized by X-Rite though the App and not with any other application or devices
- You expressly agree not to make copies of the PANTONE Color Libraries onto another medium or into memory or share any part thereof unless as part of the execution and use of the Services
The activity that occurs via your account is your responsibility. Please notify us immediately if you become aware of any unauthorized use of your account. You may not (a) share your account information with anyone except with an authorized account administrator or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the App.
Restrictions on Use
To ensure that we provide the best service to all of our users, you agree to use the App in a manner consistent with the following restrictions. Your use of the App is subject to all applicable laws and regulations.
You may not engage in the following prohibited activities while accessing or using the App:
- Make use of the App for any commercial purpose not expressly approved by X-Rite in writing;
- Interfere or attempt to interfere in any manner with the functionality or proper working of the App, or with another individual’s use of the App (including without limitation by stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way);
- Access or use the App or your account to breach security of another account or attempt to gain unauthorized access to another network or server;
- enable or allow others to use the App or content using your account information;
- Copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify or create derivative works based, in whole or in part, on the App, any updates, or any part thereof (except as and only to the extent that (i) such restriction is prohibited by applicable law, or (ii) such use is permitted by the licensing terms governing use of any open-sourced components included with the App);
- Access, tamper with, or use non-public areas of the App, our computer systems, or the technical delivery systems of our providers;
- Access or search (or attempt to access or search) the App by any means (automated or otherwise) other than through currently available, published interfaces that are provided by X-Rite;
- Scrape the App or scrape content from the App, without the express prior consent of X-Rite;
- Forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the App to send altered, deceptive or false source-identifying information;
- Interfere with or disrupt (or attempt to interfere with or disrupt) access to the App of any user, host or network, including sending a virus, overloading, flooding, spamming or mail-bombing the App, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the App;
- Upload, share, distribute or otherwise transmit any material that contains viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, limit or interfere with the functionality of any software, hardware or telecommunications equipment, or to damage or obtain unauthorized access to any data or other information of any third party;
- Upload, share, reproduce, distribute or transmit any content, information or material that is protected by copyright or any other intellectual property right without permission of the owner of such rights;
- Make use of the App including without limitation by uploading or sharing content that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening or hateful.
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages
- place advertisement of any products or services in the App except with X-Rite’s prior written approval
We reserve the right to enforce, or not enforce, these restrictions in our sole discretion, and these restrictions do not create a duty or contractual obligation for us to act in any particular manner. We reserve the right to terminate your account without prior notice to you, at any time and at our sole discretion, for violating any of the above terms. You acknowledge that we will cooperate with investigations of violations of systems or network security, including cooperating with law enforcement authorities in investigating suspected criminal violations.
Transmission and Storage of Content
Electronic communications using the App may not always be encrypted. You acknowledge that there is a risk that data, including electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and X-Rite or between you and other parties.
X-Rite is permitted, but not obligated, to retain your Content. We may monitor your Content to evaluate the quality and security of the App, or for other reasons related to providing Services. You agree that such monitoring activities will not give rise to any cause of action or other right with respect to the manner in which X-Rite monitors your Content. In no event will X-Rite be liable for any costs, damages, expenses or any other liabilities incurred by you as a result of our monitoring activities.
Third Party Sites and Information
The App may contain links to other Internet sites or include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These sites are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of links or references is provided merely as a convenience and does not imply endorsement of, or association with, any third party site or party. We make no representations concerning the content, accuracy, security or privacy of any third party site.
Ownership of App
The App encompasses the intellectual property of and is owned by X-Rite. The App, including its programming, design and operation, are protected by various laws and international treaty provisions. X-Rite does not grant you any ownership interest in the App and/or the intellectual property embodied therein. Except as expressly stated herein, X-Rite does not grant you any right or license to the intellectual property associated with or embodied in the App. All rights not expressly granted are reserved by X-Rite.
Nothing contained in the App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any image or trademark displayed in the App without the written permission of X-Rite or such third party owner of images and trademarks displayed by the App. Except as expressly stated herein, your use of the images and trademarks displayed by the App, or any other content associated with the App, is strictly prohibited.
Fees and Payments
In App Subscription Fees/Purchases. Certain Services require you to purchase a subscription in order to access all or part of such Services (“In-App Subscription”). X-Rite currently offers a monthly or annual subscription. The App may also allow you to purchase additional services and products from X-Rite (“In-App Purchases”). In App Subscription and In App Purchase Terms are available at http://www.apple.com/legal/internet-services/itunes/us/terms.html#APPS. Purchase of physical products through the App is further subject to X-Rite’s Terms and Conditions of Sale and Warranty Policy which are incorporated herein by reference.
You are responsible for paying all taxes levied in connection with your use of the Services. Your ability to access the Services may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, credit card fees, foreign exchange fees, etc.) which are solely your responsibility.
Term and Termination
The Terms will continue to apply until terminated by either you or X-Rite as set forth below. You may end your agreement with X-Rite at any time for any reason by terminating your account and discontinuing use of the App. X-Rite’s license to your Content will remain in force even after termination of your account.
X-Rite may suspend or terminate your access to the App or cease providing you with all or part of the Services at any time for any reason, without notice or liability to you. For example, if we reasonably believe that (i) you violated these Terms, (ii) you create risk or possible legal exposure, or (iii) our provision of the App or Services to you is no longer commercially viable, we may terminate your access to the App. We reserve the right to refuse access to the App to anyone for any reason at anytime. We shall not be liable to you or any third party should we exercise such right, in whole or in part.
Disclaimer of Warranties
USE OF THE APP AND SERVICES ARE UNDERTAKEN AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
THIS APP AND ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE APP WILL MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APP WILL BE EFFECTIVE, ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM X-RITE OR THROUGH THE APP SHALL CREATE ANY WARRANTY REGARDING THE APP NOT EXPRESSLY STATED IN THIS AGREEMENT.
WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS APP, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS OR INFORMATION OBTAINED FROM A THIRD PARTY ON OR THROUGH THIS APP IS PROVIDED SOLELY BY SUCH THIRD PARTY.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, X-RITE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER INCURRED DIRECTLY OR INDIRECTLY, INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOSS OF USE, DATA, PROFITS OR GOODWILL OR OTHER INTANGIBLE LOSSES. THE LIMITATIONS OF THIS SECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS APP OR OF SITES REFERENCED OR LINKED FROM THIS APP, AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THESE TERMS AND YOUR USE OF THIS APP SHALL BE LIMITED TO THE AMOUNT YOU PAID US FOR THE APP AND ASSOCIATED SERVICES DURING THE SIX (6) MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY OR, IF NO AMOUNTS WERE PAID TO US DURING SUCH SIX (6) MONTH PERIOD, THEN ONE HUNDRED DOLLARS ($100.00).
Upon a request by us, you agree to defend, indemnify and hold us harmless from all liabilities, claims, and expenses, including attorney’s fees, made by any person that arise from your use or misuse of the App. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Governing Law and Jurisdiction
The laws of the State of Michigan will govern these Terms and any actions related to the use of the App and Services (without regard to or application of its conflict of law provisions). Unless a dispute would be governed by an applicable arbitration clause, all claims, legal proceedings or litigation arising in connection with the App will be brought solely in the Superior Court of Kent County, Michigan, and the United States District Court for the Western District of Michigan. You consent and hereby submit to the exclusive personal jurisdiction and venue of such courts and waive any objection as to inconvenient forum.
Software available on or through this App may be subject to United States Export Controls. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the software was obtained. By downloading or using the App and related software, you represent and warrant that you are not located in, under the control of, or a national or resident of any a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
These Terms, including referenced materials, constitute the entire agreement between you and X-Rite with respect to your access to and use of the App, and supersedes any prior or contemporaneous agreements and communications.
Waiver and Severability
If any provision of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Any failure by us to enforce or exercise any provision of these Terms or related rights shall not constitute a waiver of that right or provision.
You may use the App and the Services only if you are (a) over 13 years old and (b) permitted by applicable law to enter into a binding contract.
If you believe that your work has been copied and posted on the App in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the App; (iv) your address, telephone number, and email address; (v) your written statement that you have a good faith belief that the arguable use is not authorized by the copyright owner, its agent, or the law; (vi) your statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Our Copyright Agent can be contacted at: Copyright Agent, X-Rite/Pantone, 590 Commerce Boulevard, Carlstadt NJ 07072 USA; Fax: (201) 896-0242; Attn: Copyright Agent; and email: firstname.lastname@example.org.
If the Software is downloaded from the Apple iTunes Application Store, then you acknowledge and agree to the following additional terms: (a) Apple has no liability for the App and its content; (b) your use of the App is limited to a non-transferable license to use the App on any iPhone™ or iPod Touch™ that you own or control as allowed by the Application Store Terms of Service; (c) Apple has no obligation whatsoever to furnish any maintenance and support services for the App; (d) in the event of any failure of the App to conform to any applicable warranty hereunder, You may notify Apple, and Apple will refund the purchase price for the App; and, to the extent permitted by applicable law, Apple has no other warranty obligation to the App and X-Rite will be responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty set forth in this Agreement; (e) Apple is not liable for any claims relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal requirement; and (iii) consumer protection claims; (f) Apple is not liable for any third-party claims that the App infringes a third party’s intellectual property rights; and (g) Apple and its subsidiaries are third party beneficiaries of these Terms with respect to any such App, and Apple will have the right to enforce the Terms against you as a third party beneficiary.
PANTONE® Colors displayed in this App may not match PANTONE-identified standards. Consult current PANTONE Color publications for accurate color.
PANTONE® and other Pantone trademarks are the property of Pantone LLC in the United States and/or other countries. Pantone LLC is a wholly owned subsidiary of X-Rite, Incorporated. © Pantone LLC and X-Rite, Incorporated, 2016. All rights reserved.
Questions and Contact
The App is provided to you by X-Rite, Inc.. If you have any questions or comments regarding the App or these Terms, please contact us.
Address: X-Rite, Inc.
4300 44th St SE
Grand Rapids, MI 49512