THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS BETWEEN SEAGULL SCIENTIFIC, INC. OR THE APPLICABLE SEAGULL SCIENTIFIC, INC. SUBSIDIARY (“SEAGULL SCIENTIFIC” OR “WE”, “US” OR “OUR”) AND THE CUSTOMER (INDIVIDUAL OR ENTITY) THAT HAS DOWNLOADED OR OTHERWISE PROCURED THE PRINTER DRIVER SOFTWARE PRODUCT (AS DEFINED BELOW) FOR USE AS AN END USER (“YOU”). BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ALL OR ANY PORTION OF THE PRINTER DRIVER SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON SEAGULL SCIENTIFIC’S WEBSITE AT WWW.SEAGULLSCIENTIFIC.COM (AS MAY BE RELOCATED BY SEAGULL SCIENTIFIC FROM TIME TO TIME). SEAGULL SCIENTIFIC RESERVES THE RIGHT, AT ANY TIME AND FROM TIME TO TIME, TO UPDATE, REVISE, SUPPLEMENT, AND OTHERWISE MODIFY THIS AGREEMENT AND TO IMPOSE NEW OR ADDITIONAL RULES, POLICIES, TERMS, OR CONDITIONS ON YOUR USE OF THE SERVICE. SUCH UPDATES, REVISIONS, SUPPLEMENTS, MODIFICATIONS, AND ADDITIONAL RULES, POLICIES, TERMS, AND CONDITIONS (COLLECTIVELY REFERRED TO IN THIS AGREEMENT AS "ADDITIONAL TERMS") WILL BE EFFECTIVE IMMEDIATELY AND INCORPORATED INTO THIS AGREEMENT. YOUR CONTINUED USE OF THE LICENSED PRINTER DRIVER SOFTWARE FOLLOWING THE ADDITIONAL TERMS WILL BE DEEMED TO CONSTITUTE YOUR ACCEPTANCE OF ANY AND ALL SUCH ADDITIONAL TERMS. ALL ADDITIONAL TERMS ARE HEREBY INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD OR INSTALL THE PRINTER DRIVER SOFTWARE. IF YOU WISH TO USE THE PRINTER DRIVER SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.
1. Definition of Source Code.
Source Code, where used in this document, means any collection of code, with or without comments, written using a human-readable programming language, usually as plain text. The source code of a program is specially designed to facilitate the work of computer programmers, who specify the actions to be performed by a computer mostly by writing source code. The source code is often transformed by an assembler or compiler into binary machine code that can be executed by the computer. The machine code might then be stored for execution at a later time. Alternatively, source code may be interpreted and thus immediately executed.
Unless otherwise noted, the Printer Driver Software, Support and Maintenance Service, and Documentation are referred to collectively herein as “Printer Driver Software Product(s)”. All undefined names of Printer Driver Software Products have the meanings given to them in the Documentation.
User Content: means any data, email address, file attachments, text, images, reports, personal information, or other content that is uploaded or submitted to the online Portal by you and is processed by Seagull Scientific on your behalf.
Seagull Scientific grants you a non-exclusive license to use the accompanying Printer Driver Software Product(s), subject to the following provisions. You assume full responsibility for the selection of the Printer Driver Software to achieve your intended results, and for the installation, use, and results obtained from the Printer Driver Software.
3. Printer Driver Software Distribution
You may obtain the Printer Driver Software directly from Seagull Scientific by downloading it from Seagull Scientific’s website. You are also permitted to keep copies within your corporate network for archival purposes but may not redistribute them outside of your organization without explicit prior written authorization from Seagull Scientific.
you are expressly prohibited from redistributing Seagull Scientific’s Printer Driver Software without prior written authorization obtained directly from Seagull Scientific.
4. Ownership and Restrictions on Use of Printer Driver Software
4.1 Notwithstanding anything to the contrary contained herein, except for the limited rights expressly provided herein, Seagull Scientific and its licensors have and will retain all rights, title and interest (including, without limitation, all intellectual property rights) in and to the Printer Driver Software Product, Source Code, Machine Code, and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Printer Driver Software Product(s), Source Code, Third Party Code and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. All other trademarks are the property of their respective owners.
4.2 Restrictions on Use of Printer Driver Software. Unless otherwise specifically provided by Seagull Scientific, Seagull Scientific does not grant you permission to modify any Printer Driver Software whether in the form of source code or machine code of the Printer Driver Software provided by Seagull Scientific to you under any circumstances. To be clear, as a condition of your use of the Printer Driver Software, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, algorithms, file formats or programming interfaces of the Printer Driver Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license); (b) distribute, sell, sublicense, rent, lease or use the Printer Driver Software for time sharing, hosting, or other use of the Printer Driver Software as a service or like purposes unless Seagull Scientific provides its prior written consent; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the Printer Driver Software; (d) modify any part of the Printer Driver Software, or to create a derivative work of any part of the Printer Driver Software, or incorporate the Printer Driver Software into or with other software; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of or copy protection used by Seagull Scientific in connection with the Printer Driver Software, or use of the Printer Driver Software; or, (g) use the Printer Driver Software to develop a product which is competitive with any Seagull Scientific product offerings.
5. Term and Termination
5.1 Term of Agreement. This Agreement commences on the date you download the Printer Driver Software Product(s). You may terminate this Agreement by ceasing use of the Printer Driver Software Product(s) and deleting the Printer Driver Software Product(s) and its Documentation from your system(s). Seagull Scientific may terminate this Agreement: (a) if you fail to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; or (b) if you fail to comply with applicable laws, regulations, or in response to U.S. economic sanctions laws, regulations, and requirements, and applicable foreign import and export controls. Unless otherwise specified herein, termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.2 Termination. Upon any expiration or termination of this Agreement, you shall immediately cease any and all use of any Printer Driver Software Product(s).
5.3 Survival. Sections 4 (Ownership and Restrictions on Use of Printer Driver Software), 5 (Term and Termination), 6.2 (Disclaimer of Warranties), 7.1, 7.2, 7.3 and 7.5 (Limitation of Remedies; Indemnification and Damages), 8 (Export Compliance) and 9 (General) shall survive any termination or expiration of this Agreement.
6. Mutual Warranties and Disclaimer
6.1 Mutual Warranties. Both parties each hereby warrant to the other that: (a) it has the authority to enter into the Agreement, to grant the rights granted by it under the Agreement, and to perform its obligations under the Agreement; and (b) it will comply with all applicable laws and regulations in effect during the term of the Agreement as they apply to such party’s rights and obligations under the Agreement.
6.2 Disclaimer of Warranties. THIS SECTION 6.2 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE PRINTER DRIVER SOFTWARE PRODUCT(S), INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY CODE, AND ALL SERVICES ARE PROVIDED “AS IS”. SEAGULL SCIENTIFIC DOES NOT WARRANT THAT YOUR USE OF THE PRINTER DRIVER SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT SECURITY MECHANISMS, IF ANY, IMPLEMENTED BY THE PRINTER DRIVER SOFTWARE WILL NOT HAVE INHERENT LIMITATIONS. NEITHER SEAGULL SCIENTIFIC NOR ITS LICENSORS, IF ANY, MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRINTER DRIVER SOFTWARE PRODUCT(S) REMAINS WITH YOU.
7. Limitation of Remedies; Indemnification and Damages
7.1 SEAGULL SCIENTIFIC SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR COSTS OF COVER), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 EXCEPT FOR: YOUR BREACH OF SECTION 3 (PRINTER DRIVER SOFTWARE DISTRIBUTION), SECTION 4.2 (RESTRICTIONS ON USE OF PRINTER DRIVER SOFTWARE), OR SECTION 8 (EXPORT COMPLIANCE), EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED FEES PAID OR OWED BY YOU UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID FOR THE PRINTER DRIVER SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM, SEAGULL SCIENTIFIC AND ITS LICENSORS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED USD$5.00; PROVIDED, HOWEVER, IF YOU HAVE ENTERED INTO A SEAGULL SCIENTIFIC MAINTENANCE AGREEMENT, SEAGULL SCIENTIFIC’S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7.3 The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed its essential purpose.
7.4 Seagull Scientific Indemnification: Seagull Scientific shall defend you from and against any claim by a third party alleging that the Printer Driver Software Product when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold you harmless from and against any damages and costs awarded against you or agreed in settlement by Seagull Scientific (including reasonable attorneys’ fees) resulting from such claim, provided that you tender to Seagull Scientific: (a) prompt written notice of such claim (but in any event notice in sufficient time for Seagull Scientific to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all reasonably necessary cooperation from you. If your use of the Printer Driver Software Product is (or in Seagull Scientific’s opinion is likely to be) enjoined, if required by settlement or if Seagull Scientific determines such actions are reasonably necessary to avoid material liability, Seagull Scientific may, in its sole discretion: (i) substitute for the Printer Driver Software Product substantially functionally similar programs and documentation; (ii) procure for you the right to continue using the Printer Driver Software Product; or if (i) and (ii) are not commercially reasonable, (iii) terminate this Agreement. The foregoing obligations of Seagull Scientific shall not apply: (1) if the Printer Driver Software Product is modified by you or any party other than Seagull Scientific, but solely to the extent the alleged infringement is caused by such modification; (2) if the Printer Driver Software Product is combined with products or processes not provided or authorized by Seagull Scientific, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Printer Driver Software Product; (4) to any unsupported release of the Printer Driver Software Product; (5) to any Third-Party Code contained within the Printer Driver Software Product; or (6) if you settle or make any admissions with respect to a claim without Seagull Scientific’s prior written consent. THIS SECTION 6 SETS FORTH SEAGULL SCIENTIFIC’S AND ITS LICENSORS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
7.5 Indemnification by You. Subject to this Section 7, you shall defend Seagull Scientific from and against all claims by third parties resulting from or relating to: (a) any breach by you of this Agreement, your unauthorized use of the Printer Driver Software Product, or your noncompliance with the licensing restrictions contained herein, and, further, you shall indemnify and hold Seagull Scientific harmless from and against any damages and costs awarded against Seagull Scientific or agreed in settlement by you (including reasonable attorney’s fees) resulting from such claims, provided that you shall have received from Seagull Scientific: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from Seagull Scientific. You may not settle any such claim relating to the Printer Driver Software Product without Seagull Scientific’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
8. Export Compliance
You acknowledge that the Printer Driver Software Product is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Printer Driver Software Product. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Printer Driver Software Product or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Printer Driver Software Product for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
9.1 Non-assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without Seagull Scientific’s prior written consent (not to be unreasonably withheld). This Agreement will bind and inure to the benefit of the parties and your respective successor(s) and permitted assign(s).
9.2 Seagull Scientific may access or disclose information about you or your use of the Driver Printer Software Product(s): (a) when it is required by law (such as when Seagull Scientific receives a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when Seagull Scientific, in its discretion, think it is necessary to protect Seagull Scientific’s rights, property, or personal safety, or that of Seagull Scientific’s users, or the public.
9.3 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
9.4 Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of Washington, USA. Should any legal action be necessary between the parties such legal action shall be filed in Bellevue, Washington, USA. The prevailing party in any litigation arising out of this Agreement shall be entitled to be reimbursed for all attorney's fees, expense, and associated costs. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the remaining provisions shall nevertheless be given full force and effect. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
9.5 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
9.6 Notices and Reports. Any notice or report hereunder shall be in writing or in electronic format. If to Seagull Scientific by mail, such notice or report shall be sent to Seagull Scientific at 15325 SE 30th Place, Suite 100, Bellevue, WA 98007-6597 to the attention of “Legal Department”. If to Seagull Scientific by email, such notice or report shall be sent to: [email protected] If to you, such notice or report shall be sent to the mailing or email address you provided upon placing your order. Notices and reports sent by mail shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service. Any notices and reports sent by email shall be effective upon receipt of the same.
9.7 Amendments; Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. All conflicting terms in any purchase order or other business form employed by you, including any electronic invoicing portals, vendor registration processes, or forms related to individuals being on your premises for Professional Services, are void, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
9.8 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
9.9 Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
9.10 Audit Rights. With reasonable prior notice, Seagull Scientific may audit your use of the Printer Driver Software Product and compliance with this Agreement, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have installed, accessed or permitted access to or use of the Printer Driver Software Product in a manner that is not permitted under this Agreement, then Seagull Scientific may terminate this Agreement pursuant to Section 6 (Term and Termination) and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Seagull Scientific may be entitled to under this Agreement and applicable law.
9.11 Government End-Users. The Printer Driver Software Product is commercial computer software. If the user or licensee of the Printer Driver Software Product is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Printer Driver Software Product, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Printer Driver Software Product was developed fully at private expense. All other use is prohibited.
9.12 Third-Party Beneficiary. There are no third-party beneficiaries under this Agreement.
9.13 Language. Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.
9.14 Modifications to this Agreement. Seagull Scientific may modify this Agreement from time to time by giving notice to you by email, through our website, through the Printer Driver Software Product or through Seagull Scientific’s online user interfaces as expressed above. At Seagull Scientific’s discretion, you may be required to click to accept or otherwise agree to a modified Agreement in order to continue using the Printer Driver Software Product, and, in any event, continued use of the Printer Driver Software Product after the modified version of this Agreement becomes effective will constitute your acceptance of such modified version as expressed above.