END USER LICENSE AGREEMENT
Please read this agreement carefully. This End-User License Agreement (“Agreement”) constitutes a binding legal agreement between you and the Hoefler Type Foundry, Inc., d/b/a Hoefler & Co. (“H&Co”), and establishes the terms and conditions by which you are permitted to install and use the Licensed Software (as defined below) and any related items of H&Co Property (as defined below). By downloading, installing and/or using the Licensed Software, you confirm that you have read, understand and agree to be bound by the terms of this agreement. If you are entering into this agreement on behalf of your employer, or your client (and you have the legal authority to sign contracts on their behalf), then “you” refers to that entity. If not, then this agreement binds you personally. This agreement does not create third party beneficiary rights for any parties. If you do not agree to the terms of this agreement, do not install the Licensed Software.
To enter into this Agreement, you must be (i) eighteen (18) years of age or older, and (ii) be able to form binding contracts under the laws applicable to you. By clicking below, you are representing and warranting that both (i) and (ii) above are correct.
Definitions. The parties agree that, for the purposes of this Agreement, the following terms shall have the meanings described below:
- “Commercial Digital Publishing License” means a separate agreement granting rights to reproduce, distribute and display Commercial Documents created pursuant to this Agreement.
- “Commercial Document” means a Document that is offered to the general public, or a subset of the general public, as part of a commercial transaction in which the consideration (monetary or otherwise) is related to the Document, such as a newspaper, magazine or Ebook.
- “Computer” means any device (and in the case of devices which allow simultaneous use by multiple individuals, each individual user account on any such device) capable of using the Licensed Software, regardless of where the Licensed Software is installed.
- “Derivative Work” means any creation that is based on or derived from the Licensed Software, including but not limited to any revision, modification, translation, abridgment, condensation, expansion, decompilation, encryption, rearrangement, reencoding, digitization, or redigitization, regardless of the medium on which it is recorded or the format in which it is expressed, or any other form in which the Licensed Software may be recast, transformed, emulated, or adapted. For the purposes of this Agreement, a Derivative Work shall also include any compilation that incorporates the Licensed Software.
- “Document” means a digital file, used in connection with human-readable text, that is not executable and is not an Image File. Document formats include, but are not limited to: Portable Document Format files (“PDF”), Electronic Publication files (“ePub”), Apple’s iBooks files (“iBook”) Adobe’s Digital Publishing Suite format (.folio), Apple’s iBooks format (.iba), and Amazon’s Kindle formats (.azw, .KP8).
- “Embedded Software Files” means any Documents or other software files that contain a copy of the Licensed Software, or data describing the shape or outline of any part of the Licensed Software. In addition to the Document file formats listed in Section 1.5, Embedded Software File formats include, but are not limited to: Small Web Format or Flash files (“SWF”), and executable software files for any platform.
- “H&Co Properties” means, collectively, the Licensed Software, the Typefaces, the Trademarks, and all of Licensor’s fonts, designs, software, trademarks, copyrights, or other intellectual property, and all other related items of H&Co intellectual property made available to you pursuant to this Agreement.
- “Image Files” means both (i) digital files that record images solely in the form of a fixed-resolution matrix of pixels, which may include fixed images of specific characters of the Typefaces rasterized in a pixel grid, and (ii) digital files that include scalable outlines of a specific arrangement of characters of the Typefaces. Image Files may not contain the Licensed Software or any portion thereof. Examples of Image Files include, but are not limited to: Scalable Vector Graphics (SVG) files, Encapsulated PostScript (EPS) files Joint Photographers’ Expert Group (“JPEG”) files; Graphics Interchange Format (“GIF”) files; Portable Network Graphics (“PNG”) files; and Tagged Image File Format (“TIFF”) files.
- “Licensed Software” means those computer programs and related data licensed pursuant to this Agreement, the name(s) of which are listed on the Order Summary, which, when used on a Computer, generate(s) the Typefaces. Licensed Software includes, but is not limited to, all bitmap representations of the Typeface designs.
- “Licensee” has the meaning set forth on the Order Summary.
- “Licensee Parties” means Licensee, its agents, employees, officers, directors, shareholders, advisors, successors, and assigns and any of their affiliates.
- “Licensor” means The Hoefler Type Foundry, Inc. d/b/a Hoefler & Co., having an office at 611 Broadway, Suite 725, New York, New York 10012-2608.
- “Licensor Parties” means Licensor, its agents, employees, officers, directors, shareholders, advisors, successors, and assigns, and any of their affiliates.
- “Login Credentials” means your full legal name, the unique email address and password specified by you (if applicable) and used to access your typography.com account.
- “Non-Commercial Document” means a Document that is either (i) created for Licensee’s personal use only (e.g. personal correspondence, resumes) or (ii) evidencing or distributed in connection with a commercial transaction in which the consideration is unrelated to such Document (e.g. business correspondence, an admissions ticket, product literature or a sales receipt).
- “Order Summary” means the file created when Licensee enters into this Agreement, which includes the specific Licensed Software covered by the Agreement, Licensee’s payment information, the number of Permitted Computers, the applicable fees, and any other relevant information.
- “Permitted Computer(s)” means the number of Computer(s) specified on the Order Summary.
- “Person” means any individual, corporation, limited liability company, partnership, joint venture, estate, association, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.
- “Security Features” means any security mechanisms available for the purpose of preventing any unauthorized Person or Computer from accessing the Licensed Software, including those features implemented after the execution of this Agreement as they become available, including mechanisms to, as applicable: (a) limit the extent of Licensed Software included in an Embedded Software File to a subset of the whole; (b) prevent the extraction of the Licensed Software, in whole or in part, from an Embedded Software File; (c) prevent the reverse-engineering, re-use, importation, decompillation, embedding, or inclusion of such Embedded Software Files that contain any part of the Licensed Software, into other Embedded Software Files; and (d) any other optional feature designed to prevent use of the Licensed Software by any unauthorized Person or Computer.
- “Software Distribution License” means a separate agreement granting rights to reproduce, distribute and display Embedded Software Files (which are not Documents), created pursuant to this Agreement.
“Term” means the period commencing on the Effective Date and, subject to the termination provisions set forth in Paragraphs 10.1 and 10.2 of this Agreement:
- with respect to the rights granted in Paragraph 2.1(b), shall conclude on the date Licensee’s subscription to the Webfont Service expires or is terminated or cancelled; and
- with respect to all other rights granted in Paragraph 2, shall be perpetual.
- “Trademarks” means the names of Licensor and the Licensed Software set forth on the applicable Order Summary.
- “Typefaces” means the typefaces designed, developed and owned by H&Co, that are rendered by the Licensed Software.
- “Webfont Service” means the Cloud.typography service, offered by H&Co which allows subscribers to use Typefaces as webfonts, in connection with proprietary systems and software provided by H&Co.
- “Web Server” means a Computer used to serve web pages.
Grant of License.
Subject to the terms of this Agreement, Licensor grants to Licensee a limited, non-exclusive, non-transferable, revocable license, without the right of sublicense to do the following:
- Installation and Archival Copy. On one (1) or more Permitted Computers, as specified on your applicable Order Summary, (i) install the Licensed Software so that a Licensee Party may display the Typefaces, in whole or in part, solely on such Permitted Computer(s), and (ii) make one (1) backup copy of the Licensed Software for archival purposes only.
- Webfont Service. Only if Licensee is a current subscriber of the Webfont Service, in good standing, use the Typefaces in connection with the Webfont Service (via proprietary systems and software provided to Licensee by Licensor), as specified on your applicable Order Summary. For clarity, the Licensed Software may not be placed on a Web Server.
- Image Files. Create, reproduce modify, display and distribute Image Files, using the Permitted Computer(s). All Image Files created pursuant to this subparagraph must not be used in conjunction with any software that, when combined with the Image File, could emulate the functionality of the Licensed Software.
Embedded Software Files. Create and modify Embedded Software Files, using the Permitted Computer(s). Licensee is also permitted to reproduce, distribute and display Non-Commercial Documents without obtaining an additional license. For clarity, except for Non-Commercial Documents, no right to reproduce, distribute or display any Embedded Software Files is granted by this license. In order to reproduce, distribute or display an Embedded Software File created pursuant to this Section that is not a Non-Commercial Document, Licensee must obtain a Software Distribution License, a Commercial Digital Publishing License, or another license as specified by Licensor. Please contact Licensor at firstname.lastname@example.org if you require these additional rights. All Embedded Software Files created pursuant to this subparagraph must comply with all of the following:
- The Embedded Software File must not allow any exportable content rendered in the Typefaces;
- The Embedded Software File must not, through any act or omission of Licensee, allow any Person, or any other software operating on the same Computer to access or use the Licensed Software;
- Licensee must use the same techniques to protect the Licensed Software as Licensee uses to protect the other contents of the Embedded Software File;
- Licensee must enable all applicable Security Features provided by the file format of the Embedded Software File, and must use best efforts to adopt new, superior Security Features as they become generally available; failure by Licensee to fully enable the Security Features of an Embedded Software File is a material breach of this Agreement and will result in its immediate termination without notice; and
- Licensee must store the Licensed Software within the Embedded Software File such that all path names and file types are non-obvious and do not reference (a) any trademarks of Licensor, (b) any typographic term of art, or (c) any file name extension associated with fonts and typography, such as .ttf or .otf.
- Rights Reserved. This Agreement does not grant to Licensee any right, title or interest in or to the H&Co Properties, other than the grant of rights expressly provided in this Agreement. All rights not granted by this license are expressly reserved.
Restrictions. Licensee may not, and must ensure that no Person is able to:
- extract, decompile, modify, reformat, translate, reverse-engineer, assemble, re-digitize, or discover the source code of, or remove or disable any Security Feature of, any Licensed Software or other H&Co Property;
- duplicate, share, license, sell, rent, lease, transfer, assign, distribute, offer or otherwise commercially exploit the Licensed Software, or any portion thereof, to any third party by any means without the express written consent of H&Co, except as expressly set forth in this Agreement;
- alter, remove or obscure H&Co’s proprietary notices, including copyright, trademark, or other legal notices in any H&Co Property;
- create any customization, variant, adaptation or Derivative Work of any Licensed Software or other H&Co Property, or any font software, font design, or typography that incorporates or imitates the data, design, or design statistics of, or that is substantially similar to, the Licensed Software;
- install or use the Licensed Software on any Computer, except as specified on your Order Summary, any Web Server, or in any manner that allows any Person or Computer to access the Licensed Software other than as expressly provided for in this Agreement, including, without limitation, causing the Licensed Software to be displayed on a web page using the CSS @font-face rule; or permit or enable any other Person or Computer to use the Licensed Software in any way; or
- Continue to use any Licensed Software, or H&Co Property after termination of your Agreement.
- Licensee shall be fully responsible for all use of the Licensed Software by any Person who gains access to it pursuant to the terms and conditions of this Agreement, or as the result of any act or omission of Licensee in violation of this Agreement. Also, Licensee will use its best efforts to adopt new Security Features as they become generally available from time to time.
- Subject to the terms of this Agreement, Licensor grants to Licensee a limited, non-exclusive, non-transferable, revocable license, without the right of sublicense to do the following:
Payment and Taxes. In consideration for the rights granted to Licensee hereunder, Licensee shall pay to Licensor a license fee specified on the Order Summary, payable on the date the Licensee enters into this Agreement by clicking below.
- Fees for Licensed Software are posted on our website, and may be changed from time to time. Changes will not be applied retroactively to existing licensees.
- A valid credit card number is required in order to enter into this Agreement. You hereby represent and warrant that you are authorized to use the credit card provided to us in association with this Agreement. If Licensor cannot process your credit card for any reason, delivery of Licensed Software may be delayed until payment can be processed.
- All amounts paid pursuant to this Agreement are non-returnable and nonrefundable. No exceptions will be made.
- All fees will not include, and Licensee is responsible for paying any applicable sales, use, gross receipts, excise, import, export, value added or similar taxes. Each party will bear its own taxes as levied under applicable law. Notwithstanding the foregoing, if you live or operate in New York State, H&Co shall collect New York State sales tax, which will appear as a separate line item on your Order Summary.
- Licensee acknowledges that Licensor is the exclusive owner of all worldwide right, title and interest in and to the H&Co Property, including all copies of the Licensed Software, regardless of the format in which they are expressed or the media on which they are recorded. Licensee acknowledges that Licensor shall be the exclusive owner of all worldwide right, title and interest in and to any and all modifications, customization, variations, or adaptations of the H&Co Property (individually and collectively, the “Modifications”), based on or substantially similar to, the H&Co Property, inclusive of all Derivative Works, regardless of who made such Modifications or Derivative Works. If Licensee makes or causes to be made any such Modifications, Licensee shall immediately provide Licensor with all copies of such Modifications made by or for Licensee, and Licensor may terminate this Agreement pursuant to Paragraph 10.
- Licensee agrees not to challenge Licensor’s rights in or to the H&Co Property, or the validity of any intellectual property or other right of Licensor therein, or to infringe Licensor’s rights therein. All goodwill that may become attached to the Trademarks as a result of Licensee’s use of the Typefaces or the Licensed Software shall inure to the exclusive benefit of Licensor. Licensee shall refrain from using the Trademarks as part of any corporate, trade or firm name or style of Licensee. Licensee shall not create a combination mark consisting of any of the Trademarks with the proprietary marks of any other Person. Licensee shall not take any action that could reasonably be expected to impair the registrability, validity or enforceability of any of the Trademarks, nor shall Licensee attempt to register, use or aid any third party in attempting to register or use, in any jurisdiction, any trademark or service mark which may, in the reasonable opinion of Licensor, infringe or otherwise violate Licensor’s rights to the Trademarks.
- Updates and Upgrades. Nothing in this Agreement shall be construed to obligate Licensor to provide upgrades or updates of the Licensed Software to Licensee under any circumstances. To the extent upgrades or updates are provided, they shall be provided to Licensee on a license exchange basis, and Licensee agrees that by using an upgrade or update Licensee voluntarily terminates Licensee’s right to use any previous version of the Licensed Software. Upgrades and updates may be licensed with additional or different terms and fees.
Transfer of Rights Prohibited.
- Licensee may not sell, lease, sublicense, or otherwise assign or transfer (each, a “Transfer”) any rights, duties or obligations under this Agreement, in whole or in part, to any Person, including by merger or operation of law.
- If Licensee is a corporate parent, subdivision, wholly-owned subsidiary, joint venture, unincorporated division, or is otherwise affiliated with another Person (including, without limitation (i) a single publication that is owned or operated by a parent company that owns or operates other publications or (ii) an agency, studio, graphics production company, or similar entity owned or operated by a parent company that owns or operates such entities), Licensee may not permit such Person, or any Person owned, operated, or otherwise affiliated with such Person, to use the Licensed Software in any manner.
- Any Transfer in violation of this Agreement will be null and void.
No Warranty. The licensed software is provided “as is.” To the extent permitted by applicable law, licensor disclaims all warranties, representations and guarantees, express or implied, as to merchantability, fitness for any particular purpose, or otherwise with respect to the licensed software. In addition, there is no warranty of non-infringement, title or quiet enjoyment.
- Licensee understands and agrees that Licensee downloads and/or uses the licensed software at Licensee’s discretion and risk and that Licensee will be solely responsible for any damages to any computer or loss of data that results from the download or use of the Licensed Software.
- Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to licensee. Licensee may also have other rights that vary from state to state and jurisdiction to jurisdiction.
- You are not granted any right to use the Licensed Software in any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). H&Co and its suppliers disclaim any express or implied warranty of fitness for High Risk Use.
- Disclaimer of Liability. To the extent permitted by applicable law, Licensor disclaims all liability for any loss, cost or damage, including without limitation indirect, special, consequential, or incidental damages, including any lost profits or lost savings, loss of goodwill, business interruption, work stoppage, loss of data, or computer failure, damage or malfunction, or for any claim by any party, even if licensor has been apprised of the possibility of such damages, and regardless of the theory (including contract, tort, strict liability, negligence or otherwise) upon which such claim is based. In no event shall Licensor’s total liability to Licensee for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount paid by Licensee under this agreement. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose. Licensor and Licensee acknowledge and agree that these limitations are an essential element of this agreement and that the price for the Licensed Software is determined in part by taking into account the existence of these limitations.
- During the term of this Agreement, Licensor may require Licensee to provide the addresses of all locations where the Licensed Software is installed.
- During the term of this Agreement and for one (1) year thereafter, Licensor or its designated agent may inspect the Licensed Software and Licensee’s facilities and records to verify Licensee’s compliance with this Agreement. Any such inspection will take place only during Licensee’s normal business hours and upon no less than ten (10) days prior written notice from Licensor. Licensor will give Licensee written notice of any non-compliance, including the number of underreported units of the Licensed Software, and Licensee will have fifteen (15) days from the date of this notice to make payment to Licensor for the applicable units of the Licensed Software. If the shortfall in the amount payable by Licensee exceeds five percent (5%) of the total amount contemplated by this Agreement, Licensee will also pay Licensor for the cost of such inspection. Upon request by Licensor, Licensee will provide to Licensor via e-mail copies of any and all data files related to Licensee’s use of the Licensed Software, including all copies of the Licensed Software or provide Licensor with remote access to such data files on Licensee’s computer system.
Breach and Termination.
- Licensor may terminate this Agreement immediately by written notice to Licensee upon failure by Licensee to comply with the terms of this Agreement, including without limitation, by use exceeding the scope of the licenses granted in Paragraph 2 of this Agreement.
Licensor may terminate this Agreement or suspend Licensee’s rights to use the Licensed Software upon written notice to Licensee if:
- Licensee has materially breached any obligation under this Agreement and failed to cure the breach to Licensor’s reasonable satisfaction within fifteen (15) days following receipt of notice of the breach;
- a Person other than Licensee has used the Licensed Software employing Licensee’s access rights or Licensee’s copy of any software;
- Licensee stops or suspends doing business;
- Licensee becomes insolvent or becomes subject to any bankruptcy or insolvency proceeding under federal or state law (unless the proceeding is removed or dismissed within sixty (60) days from the filing date) or becomes subject to direct control of a transferee, receiver, or similar authority or makes an assignment for the benefit of creditors; or
- as a result of an acquisition, merger, reorganization or strategic business relationship, Licensee becomes a competitor of Licensor (by developing, licensing, or distributing font- or typeface-related software or services) or, in Licensor’s reasonable opinion, is likely to become such a competitor of Licensor within one hundred eighty (180) days.
- The termination of this Agreement shall automatically terminate and extinguish the licenses granted herein. Upon any such termination, Licensee shall immediately destroy the original and all copies of the Licensed Software in its possession and Licensee shall have no further right to use the Licensed Software pursuant to this Agreement. All confidentiality obligations of Licensee under this Agreement will continue for two (2) years after any expiration or termination of this Agreement.
- Licensee hereby waives any and all challenges to, or claims or defenses regarding Licensor’s right to terminate this Agreement pursuant to the terms hereof.
- In lieu of termination, Licensor reserves the right to (a) require that Licensee immediately cease any unauthorized use in violation of the terms of this Agreement and (b) assess additional fees for the unauthorized use.
- Licensor’s rights and remedies under this Agreement shall be cumulative and not exclusive of any other rights or remedies provided hereunder or by law.
- Force Majeure. Licensor shall not be liable for damages and Licensee shall not have the right to terminate this Agreement for any delay or default in delivery of the Licensed Software resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control including, but not limited to: internet failures, network failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, acts of God, terrorist action, acts of civil or military authority, government actions, fires, epidemics, riots, wars, sabotage, insurrections, labor shortages or disputes.
- Governing Law; Jurisdiction and Venue. This Agreement and all rights and obligations under this Agreement shall in all respects be governed by, and construed and enforced in accordance with, the laws of the State of New York (the “State”), but without regard to its conflicts of laws or choice of forum rules. Licensee hereby irrevocably submits to personal jurisdiction in the State and to the non-exclusive jurisdiction of any New York state or federal court sitting in the City of New York over any legal suit, action, or proceeding arising out of or relating to this Agreement or the relationships created by or under this Agreement (“Action”). Jurisdiction and venue of any Action shall, at the election of Licensor, be in (and if any Action is originally brought in another venue, the Action shall at the election of Licensor be transferred to) a state or federal court of appropriate jurisdiction located in the State. Licensee hereby waives and agrees not to assert, as a defense to any Action or a motion to transfer venue of any Action, any claim (a) that it is not subject to such jurisdiction; (b) that any Action may not be brought against it or is not maintainable in those courts; (c) that this Agreement may not be enforced in or by those courts; (d) that it is exempt or immune from execution; (e) that the Action is brought in an inconvenient forum; or (f) that the venue for the Action is in any way improper.
- No Waiver. No failure by either party to object to any breach of any provision of this Agreement shall constitute a waiver of such provision, a waiver of any other breach, or a waiver of any other provision of this Agreement.
- Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of any other provision hereof. To the fullest extent permitted by law, if any provision of this Agreement, or the application thereof to any Person or circumstance, is invalid or unenforceable (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability.
- Relationship of the Parties. Each of the parties shall act as an independent contractor under this Agreement and neither is now, nor in the future, an agent or legal representative of the other for any purpose. This Agreement shall not be construed to place the parties in the relationship of partners or joint venturers. Neither party has any right or authority to bind the other in any way.
- Export Control. Licensee may not use or otherwise export or re-export the Licensed Software except as authorized by United States law and the laws of the jurisdiction(s) in which the Licensed Software was obtained. In particular, but without limitation, the Licensed Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By its use of the Licensed Software, Licensee represents and warrants that Licensee is not located in any such country or on any such list. Licensee also agrees that Licensee will not use the Licensed Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
- Entire Agreement. This Agreement constitutes the entire understanding between the parties concerning the Licensed Software and supersedes all previous agreements, promises, representations and negotiations between the parties concerning the same. No pre-printed terms of any subsequent purchase order, invoice or Order Summary will add to, modify or supersede the terms of this Agreement.
- Survivability. Paragraphs 3 through 9 and 11 through 21 of this Agreement, and any terms that by their nature survive termination, shall survive the termination of this Agreement.
- Indemnification. Licensee, at its expense, shall indemnify Licensor against all losses, damages, claims, expenses (including attorneys fees and court costs) arising out of or resulting from (a) any use of the Licensed Software by Licensee (unless and only to the extent the loss is attributable to a breach by Licensor of any obligation under this Agreement), (b) any breach by Licensee of this Agreement, or (c) any actions by Licensee Parties or Persons that would constitute a breach of this Agreement if that Licensee Party were a party to this Agreement and its obligations were substantially the same as Licensee’s obligations.
- Any notice, approval, request, authorization, direction or other communication under this Agreement shall be sufficient if sent by certified U.S. mail, addressed to the party to whom the same is directed, in which event the date of the notice shall be the date of deposit in the U.S. mails, postage prepaid, or on the delivery date if delivered by email; provided, however, that notice sent by email shall not be effective with respect to matters related to termination or indemnity.
- Notice shall be provided to Licensee at the address set forth on Licensee’s Order Summary. Notice shall be provided to Licensor at the address set forth in Paragraph 1.11. above, or via email at email@example.com.
- Captions; Construction. The paragraph headings in this Agreement are for reference purposes only and should not in any way affect the meaning or interpretations of this Agreement. The word “including” is intended to be illustrative and includes the meaning, “including, but not limited to.” The singular of a defined term includes the plural and vice versa.