This Use License Agreement (the “Agreement”) is a legal agreement between you (either an individual or a single entity – hereafter “you” or “your”) and DxO Labs for the DxO Labs Software(s) installed at your workstation (the “software”). If you do not agree to be bound by the terms of this Agreement, do not install the Software. Your acceptance of the Software and present Agreement will be deemed to occur at the date of your first installation of the Software. Therefore, from your first use of the Software, you agree that DxO Labs or the owner of any Third Party Software included in the Software will be entitled to enforce the terms of the Agreement against you.
“Agreement” means this agreement and where applicable, the invoice related to the purchase of the Software.
“DxO” or “DxO Group” means the company DxO Labs S.A and its direct or indirect subsidiaries. DxO Labs is a company incorporated under French law, registered with the Commercial Register under number 444 777 577, operating under Intra-Community VAT number FR64444777577, and headquartered at 3 Rue Nationale, 92100 Boulogne, France with the telephone number of +33 1 55 20 55 99.
“Delivery Date” means the date of the Software’s download as performed by you.
“Documentation” means any document supplied to you when you purchase a Commercial Version or Trial version of the Software, which contains a description of the Software and its functionalities. This documentation may be printed, “on line” or electronic.
“Damages” means any losses, damages, costs (including reasonable attorney’s fees) or liabilities.
“Designated Environment” means the computer equipment and software operating system set out in the DxO release notes, contained either on the Software package or from its download or online sale site and which may be amended on a regular basis.
“Error” means a material and reproducible critical failure of the Software to function substantially in conformity with the Documentation.
“Features” means any new or optional functionality of the Software offered during the execution of the Agreement in return for payment of an additional price. Upon payment of the price, the Feature is considered as full part of the Software.
“Licensed Copies” means the number of copies of the Software and the Documentation licensed, as applicable and as set forth in your Invoices or your user account.
“Invoice” means the invoices obtained from your distributor or from DxO during an online purchase.
“Service Hours” means the hours, set out on the DxO Web Site, during which we may provide Software Support to you as described on our Web Site.
“License” means the license granted by us to you to use the Software and the Documentation in accordance with the terms and conditions of this Agreement.
“Third Party Software” means any computer program which is owned by a third party other than a member of the DxO Group and which is made available to you by us as part of the Software. Subject as specifically excluded in this Agreement, the Third Party Software will be considered part of the Software. Any program owned by a third party, available as part of the Software, may be removed at any time by DxO. For security reasons, DxO integrates DRM (“Digital Rights Management”) software components in the Software.
“DxO Software” means the Software owned by any member of the DxO Group.
“Software” means the computer software provided to you via download, in object code form, including any copies made pursuant to Section 2.1(b).
“Warranty Period” subject to applicable law, the Warranty period on the Software is limited to 90 days from the Delivery Date for a Commercial Version.
“Price” means the price you pay in exchange for the right to use a DxO Software according to the terms of the Agreement.
“Site” means the site you indicated during the creation of your user account, and where applicable, also set-out on the Invoice, where the Software will be delivered and operated.
“Software Support” means diagnosis and repair services to be provided by us in response to an Error during the Service Hours.
“Commercial Version” means a version of the Software acquired from an online sales site or from a distributor, in exchange for payment of a license fee,
“Trial Version” means a version of the Software which generally includes the same functionalities as the Commercial Version but which contains restrictions such as for example a time limitation (the “Restrictions”).
2 SOFTWARE LICENSE
2.1 Subject to (i) for Commercial Versions of the Software, payment in full of the amount set-out in the Invoice and (ii) for the Trial Versions of the Software, compliance with the Restrictions indicated during the download, we grant you a single user, non-exclusive and non-transferable license to:
(a) use the copy of the Software and the Documentation in the version set out either in the Invoice or during the download and in the Designated Environment for your sole own personal needs;
(b) make a full and complete copy of the Software and Documentation for archival or re-build purposes only (limited to a maximum of one copy per License), provided that this copy of the Software will be subject to the terms of this Agreement;
(c) make a secondary copy of the Software for your portable computer provided that (i) its usage is not concurrent with the use of the Software on the Designated Environment and (ii) this copy of the Software will be subject to the terms of this Agreement.
2.2 Except for the limited rights mentioned in Section 2.1, you are not granted any right on the Software and, in particular, you agree you will not:
(a) make available or distribute all or part of the Software or Documentation to any third party whether by assignment, sub-license or by any other means;
(b) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Software or Documentation, except as allowed by law or this Agreement;
(c) use the Software to operate in a time-sharing, outsourcing, rental or service bureau environment, or in any way allow third parties to use, or access the Software;
(d) conceal or remove any title, trademark, copyright, proprietary or restricted rights notices contained in the Software, the Documentation or the copies of the Software.
2.3 You may have chosen to receive a copy of the Software on one medium (back-up copy) after having downloaded it. Regardless of the number of medium you received, even in the case of an update, you may not concurrently run the Software on a larger number of computers than stated in Section 2.1 (c).
2.4 With regard to the Licensed granted, this Software is licensed as a single product regardless the number of modules composing it. You agree not to separate these modules for any purpose whatsoever.
2.5 An internet connection is required to use the Software and specifically for its activation.
2.6 In order to improve its Software and especially its security, and offer the most relevant Features, DxO may need to collect data from your computer or relating to your own use of the Software. This data will only be sent to DxO or a DxO subcontractor for the purposes of improving the Software and customizing the Feature offerings in accordance with this Agreement. The collection of this data is carried out in accordance with Article 14 of the Agreement.
3 SOFTWARE SUPPORT AND UPGRADE
DxO may provide you Software Support during the Service Hours for a period of one year starting from the Delivery Date, subject to the application of the rules described on its Website. Any supplemental software code provided to you as part of the Software Support shall be considered as part of the Software and subject to the terms and conditions of this agreement.
If DxO makes a Software release available you must be properly licensed to use the Software version identified by DxO as being eligible for the upgrade in order to use the Software release. Software labelled as an upgrade replaces and/or supplement the Software that formed the basis for your eligibility for the upgrade.
Neither Software Support nor upgrade offered by DxO is available without proof of purchase of the Software License.
4.1 With regard to the Commercial Version of the Software, you will pay the Price in accordance with the amount set out in the Invoice, including – should you choose this option – any costs reasonably incurred by DxO in the delivery of the Software.
4.2 You will pay any sums due by you to us under this License in full, without any right to set-off or deduction. If any tax in the nature of withholding tax is payable on any sums invoiced under this Agreement, you will pay us such amount as is necessary to ensure that the net amount received by us after such withholding shall be equal to the amount invoiced.
4.3 If you fail to pay any amounts invoiced under this Agreement or dispute them, you will be liable to pay us interest at the French legal interest rate on the amount due, such interest to accrue on a daily basis from the due date until actual payment and your right to the Software License will be stopped until the actual payment.
5 PROPRIETARY RIGHTS, TITLE AND RISK OF LOSS
You acknowledge and agree that the copyright, patent, trademark, images, photographs, text and all other intellectual property rights of whatever nature in the Software and the Documentation are and will remain the property of the DxO Group or the owners of the Third Party Software, and nothing in this Agreement should be construed as transferring any aspects of such rights to you or any third party.
(a) we have the right to perform our obligations under this Agreement and in particular to grant the License and
(b) during the Warranty Period, the Software will perform in substantial compliance with the Documentation. We do not warrant that the Software will meet your own needs. Therefore, it is your sole responsibility to evaluate your needs and determine if the Software is adapted to your needs.
6.2 DxO expressly reserves the right to correct any Software default or bug. The Warranty covers the latest version of the Software available for download on the DxO site.
6.3 As soon as you notify us of an Error during the Warranty Period, we shall take all necessary measures, at no cost to you, within a reasonable amount of time and during the Service Hours, to correct the Error in question, except for Errors caused by:
(a) use of the Software which is not in accordance with the Documentation, or
(b) your negligence, or
(c) any accident, misuse, unauthorized modification, failure of electrical power supply, or improper environment.
6.4 Although DxO is not obligated to remedy any Error (i) that occurs during the Warranty Period and (ii) that is caused by any of the events set out in Section 6.3. (a), (b) and (c), it shall use reasonable commercial efforts to do so.
6.5 During the Warranty Period, if we are unable to correct an Error (i) which totally prevents the use of the Software, (ii) of which we have been given notice and (iii) which was part of our obligations pursuant to Section 6.1, DxO’s liability for such Error or repeat of such Error will be limited to a refund of that portion of Software Price, upon which refund you will return to us the Software.
6.6 THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY US. WE EXPRESSLY EXCLUDE ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS IN THE SOFTWARE CAN BE CORRECTED.
7 YOUR RESPONSIBILITIES
7.1 During the Warranty Period, you will cooperate with DxO and provide any necessary assistance to allow us to perform our obligations under this Agreement.
7.2 You will be required to:
(a) promptly notify us of any Errors;
(b) provide sufficient information to us to facilitate the effective diagnosis of any Error;
(c) permit us to take such steps as we reasonably consider necessary to remedy any Error.
8 GENERAL INDEMNIFICATION
8.1 Subject to Sections 10.2, 10.3 and 10.4 we agree to indemnify you against any Damages you may suffer due to:
(a) any misrepresentation or breach of representation or warranty by us contained in this Agreement; or
(b) any breach of our obligations under this Agreement.
8.2 Subject to Sections 10.3 and 10.4 you agree to indemnify us against any Damages we may suffer due to:
(a) any misrepresentation or breach of representation or warranty by you contained in this Agreement;
(b) any breach of your obligations under this Agreement; or
(c) any claim brought by any third party against us based on your use of the Software, unless such claim is caused by our gross negligence or wilful misconduct.
9 INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION
9.1 Notwithstanding Section 9.2, we agree to indemnify you against any Damages you may suffer due to any claim by any third party that the use or possession by you of the DxO Software (and Third Party Software to the extent the Third Party Software owner has agreed to indemnify us) pursuant to a commercial License,, infringes a copyright, patent, trade secret, trademark or other intellectual property right of that third party provided that:
(a) we are given prompt notice of the claim;
(b) we or, if applicable, any Third Party Software owner are given complete control over such claim, and you fully co-operate with us or such Third Party Software owner at either our or such Third Party Software owner’s expense in the conduct of such claim;
(c) you do not prejudice in any manner our or such Third Party Software owner’s conduct of such claim; and
(d) the claim is not based upon the use of the Software in a manner:
(i) not authorized under this Agreement;
(ii) for which the Software was not designed; or
(iii) not in accordance with the Documentation;
(e) we shall not be required to indemnify you for any claim of intellectual property infringement based on the:
(i) use of a superseded version of the Software, if had made available to you a newer version of the Software and use of this new version would have avoided this violation;
(ii) use of an altered version of the Software; and
9.2 If a final injunction is obtained against the use of any part or all of the Software as a result of a claim under which we are obliged to indemnify you under Section 9.1, and provided you have fully complied with Sections 9.1 (a) through (e), we will, at our choice either:
(a) procure for you the right to continue to use the Software;
(b) modify the Software so that it becomes non-infringing;
(c) replace such Software with software offering similar functions, provided such replacement substantially complies with the Documentation; or
(d) either, if it is commercially impossible to achieve (a), (b) or (c) above, terminate the license and pay you a cancellation fee equal to the Price paid for the Software in question, less depreciation on a straight line basis at the rate of 50% per 12 month period, or pro rata based on that rate in the case of a period inferior to 12 months, from the Delivery Date to the date of the termination of the license. If we select this fourth option, the provisions of Section 9.4 regarding return of the Software (and any applicable Documentation) will apply.
9.3 We will not be required to indemnify you pursuant to Section 9.1.;
(a) in the case you do not accept the solution we selected in accordance with Section 9.2., or
(b) if you only have the Trial Version of the Software.
If the case set out in the aforementioned Section 9.3. b), your only recourse shall be to stop using the Software.
9.4 You agree to indemnify us for any loss or damage we may suffer due to any claim by a third party for alleged infringement of any copyright, patent, trade secret, trademark, or other intellectual property right arising out of your use of the Software in any manner prohibited by this Agreement.
10 LIMITATION OF LIABILITY
10.1 OUR LIABILITY IS SOLELY LIMITED TO THE FOLLOWING SITUATIONS:
(a) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE;
(b) ANY OTHER DIRECT LOSS OR DAMAGE CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10.2 UNDER NO CIRCUMSTANCES WILL OUR LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE PRICE ACTUALLY PAID BY YOU FOR THE SOFTWARE UP UNTIL THE DATE OF THE BREACH GIVING RISE TO THE CLAIM.
10.3 NEITHER OF US WILL HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE TO DATA, LOSS OF BUSINESS OR LOST PROFITS.
10.4 Neither of us will be under any liability for any loss or for any failure to perform any obligation contained in this Agreement due to causes beyond its control. Should such causes continue for more than six months, either of us may cancel the Agreement immediately upon giving notice to the other party.
11 TERM AND TERMINATION
11.1 The License of the Commercial Version of the Software will remain in effect for the duration of the copyright unless terminated in accordance with Sections 9.2(d) or 11.3.
11.2 The license of the Trial Version of the Software will contain some Restrictions, such as its term, as set-out on our internet site. In the event you did not convert this version into the Commercial Version prior to reaching those Restrictions, this Agreement will automatically terminate.
11.3 The party not in default may automatically terminate this Agreement (within the timescales set out below) if the other party:
(a) commits a material breach of this Agreement which is incapable of remedy – immediately upon giving notice;
(b) commits any other material breach of this Agreement which is capable of remedy – 30 days after giving notice of the breach, if the breach remains unremedied;
(c) subject to applicable law, makes an assignment for the benefit of its creditors, or an order is made or effective resolution is passed for its winding up, or it has a receiver, manager or administrator appointed in respect of any of its property – immediately upon giving notice.
11.4 Upon termination of this Agreement, you will immediately cease using the Software and Documentation and promptly return or destroy at our direction all copies of the Software and Documentation. You will delete all copies of Software residing in memory on any computer at the Site. You will, within 10 days from the effective date of the termination certify to us in writing that all copies of the Software and Documentation have been returned, deleted or destroyed as directed by us. If you fail to do so, we may enforce our right to repossess the Software and Documentation.
12.1 Certain parts of the Software might be subject to export regulations of the European Union, United States and other countries for high technology goods. You warrant that you are not subject to any restrictions on delivery of the Software to you and you agree to comply with such regulations.
12.2 This Agreement sets out the entire understanding between us relating to your purchase of the License and use of the Software and replaces all prior proposals, understandings and other agreements, oral and written between us relating to the subject matter of this Agreement.
12.3 If any part of this Agreement that is not fundamental is found to be illegal or unenforceable, this will not affect the validity or enforceability of the remainder of this Agreement.
12.4 If either of us delays or fails to exercise any right or remedy under this Agreement, that party will not have waived that right or remedy.
12.5 This Agreement will be governed by and construed in accordance with the laws of France. Any dispute arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the appropriate Paris Courts.
12.6 Sections 4, 5, 6, 7, 9, 10, 11.4 and 12.5 will survive the termination of this Agreement for any reason.
12.7 In this Agreement:
(a) any reference to a notice means to a written notice;
(b) headings are for convenience only and do not affect the interpretation of the Agreement; and
(c) words importing the singular include the plural and vice versa.
13 RESPONSIBILITY FOR CONTENT PUBLISHED ON EXTERNAL WEBSITES
13.1 You are solely responsible for any content and material that you transfer or upload to any online photo storage or sharing website which makes such content available to third parties, public as well as private. In no case can DxO Labs be held responsible or liable for any data that you have transferred to any such sites.
13.2 You agree that you will not publish any photo containing material that is illegal according to all relevant laws and regulations currently in force. This means that you will not publish content which is of a pornographic or violent nature, nor which incites racial hatred, nor which encourages suicide, nor which promotes criminal or offensive behavior, including denial of crimes against humanity.
13.3 You are responsible for ensuring that all content published on any such online photo storing or sharing websites does not violate the general conditions of use stipulated by those websites and with which you have freely agreed to comply.
14 PERSONAL DATA
14.1 In order to provide the License, DxO needs to collect some personal data. The purpose of this collection is to:
• Provide, activate and deactivate a trial version of the Software;
• Provide, activate and deactivate a Software License;
• Give you access to the Software activation keys via email or from your customer account;
• Improve the Software and in particular its security ;
• Allow the installation of updates and upgrades;
• Provide Technical Support;
• Ensure the commercial promotion of the Software and the personalized proposal of Features.
This data processing is carried out by DxO in execution of the Agreement.
14.2 The data likely to be collected are the following:
• data relating to the hardware configuration and the PC / Mac operating system of your computer, and in particular a computer identifier;
• data relating to the version of the Software you are using;
• data relating to your interactions with the Software, such as displaying or using tools;
• data relating to image processing that you perform using the Software, such as the number of images processed, the processing applied to the images and performance measurements;
• the identifier used to link the data relating to the various licenses of DxO and Nik products that you use;
• error reports and performance data;
• images, but only those that you may decide to share with Technical Support for the purposes of resolving an incident.
14.3 Your data is used by DxO employees who need to access it for the purposes mentioned above. In any case, they are not sold, rented or shared with third parties.
14.4 For the purposes mentioned above, your data is collected and processed via third party solutions and may therefore be transferred outside the European Economic Area. As part of this transfer, your rights and interests with regard to your data are guaranteed and protected by the implementation of the European Commission’s standard contractual clauses in the agreements signed between DxO and the entities to which we transfer your data. You can access these clauses by clicking here :
14.5 DxO keeps your data for the following duration:
Data relating to the version of the Software you are using, the hardware configuration and the PC / Mac operating system of your computer, and in particular a computer identifier
License term increased by two years
Data relating to your interactions with the Software, such as displaying or using tools, data relating to image processing that you perform using the Software
Identifier used to link the data relating to the various licenses of DxO and Nik products that you use
Error reports and performance data
Images shared with Technical Support for the purposes of resolving an incident
Time required to solve the incident
At the end of this retention period, DxO may keep your data in anonymized form.
14.6 DxO takes reasonable technical and organisational precautions to prevent the loss, misuse or modification of your personal data. DxO stores on secure systems the personal data you provide.
14.7 You have the rights to access, rectify, erase, limit and object the processing of your data by contacting our customer service at https://support.dxo.com. You also have the right to define post-mortem guidelines on the use of your data as well as the right to lodge a complaint with the CNIL. If you choose not to provide the required data that allows us to offer you the trial version and / or the License, you will not be able to use the Software.
In case of a discrepancy, the version of this Agreement which shall serve as reference is the French version.