SELF-HOSTED LICENSE AGREEMENT
Please read this Agreement carefully. This License Agreement (“Agreement”) constitutes a binding legal agreement between you (“Licensee” or “you”) and The Hoefler Type Foundry, Inc., d/b/a Hoefler & Co., (“H&Co” or “we”) and establishes the terms and conditions by which you are permitted to Self-Host the H&Co Properties (as defined below) on your own web server. By clicking below and creating Login Credentials (as defined below), you confirm that you have read, understand, and agree to be bound by the Agreement. If you are entering into this Agreement on behalf of your employer or client (and you have the legal authority to sign contracts on their behalf ), then “Licensee” or “you” refers to that entity. If not, then this Agreement binds you personally. The TOS does not create third party beneficiary rights for any parties. If you do not agree to the terms set forth herein, you may not self host the H&Co Properties.
We reserve the right to modify and update this Agreement from time to time. We will post notice of any such modifications on the.Typography.com site and/or send you an email to the address provided as part of your Login Credentials (or another email address that you specify). You can review the most recent version of this Agreement at http://www.typography.com/home/self-hosted-terms.php. Modifications will not be applied retroactively.
You acknowledge and agree that you bear the entire risk as to the quality and performance of the H&Co Properties.
1. DEFINITIONS. As used in this Agreement, the following terms have the meanings described below:
1.1. “Authorized Advertisement(s)” means digital advertisements, created by or on behalf of Licensee, pertaining to a brand owned or controlled by Licensee, for which you are permitted to use the Self-Hosted Files to render those advertisements in the Typefaces.
1.2. “Authorized HTML Email(s)” means HTML-enabled email, pertaining to a brand owned or controlled by Licensee, for which you are permitted to use the Self-Hosted Files to render those emails in the Typefaces.
1.3. “Authorized Material(s)” means, collectively, Authorized Advertisements, Authorized HTML Email and Authorized Websites.
1.4. “Authorized Website(s)” means only those websites, that are controlled by you, for which you are permitted to use the Self-Hosted Files to render those websites in the Typefaces.
1.5. “Licensed Font Software” means those computer programs licensed to Licensee by means of a separate agreement, which generate the Typefaces on computers or other devices.
1.6. “H&Co Properties” means, collectively, the Typefaces, the Self-Hosted Files and all other items of H&Co intellectual property provided herein, as well as the Licensed Font Software.
1.7. “H&Co Systems” means the hardware and software used by H&Co to provide the Service.
1.8. “Login Credentials” means your full legal name, and the unique email address and password specified by you and used to access your typography.com account.
1.9. “Month” means the period running from the monthly anniversary of the Effective Date in a given calendar month during the term, to the monthly anniversary of the Effective Date in the following calendar month. During any calendar month that does not contain the monthly anniversary of the Effective Date, the current Month will end, and the next Month will begin on the last day of that calendar month.
1.10 “Order Document(s)” means the document(s) created by H&Co when Licensee enters into this Agreement, or adds additional products and services offered by H&Co under the same terms, which feature Licensee’s contact and payment information, products and services ordered, applicable fees, Pageviews, and any other relevant information. Order Documents may include invoices, receipts, statements and other documents, as applicable. More than one Order Document may be appended to this Agreement.
1.11. “Pageviews” means the Monthly total number of allowable requests by Viewers to load any Authorized Materials, including viewing Authorized Advertisements and Authorized Websites, and opening Authorized HTML Emails.
1.12. “Person” means an 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.
1.13. “Self-Hosted Files” means any font packages and other files provided to you by H&Co, for installation on your own server infrastructure, which are intended to cause your Authorized Materials to be rendered in the Typefaces. The Self-Hosted Files will be provided in WOFF and WOFF2 formats.
1.14. “Term” means the period of time, beginning on the Effective Date, during which you are permitted to use the Self-Hosted Files in connection with your Authorized Materials. The initial Term will consist of either one (1) year, renewing automatically in one (1) year increments, or a perpetual term, unless you affirmatively terminate this Agreement.
1.15. “Typefaces” means the typefaces, designed, developed and owned by H&Co, that you have licensed from H&Co pursuant to this Agreement, which will be contained in the Self-Hosted Files.
1.16. “Viewer” means any Person or entity that views any Authorized Material.
2. GRANT OF LICENSE.
2.1. Grant. Subject to the terms of this Agreement, H&Co hereby grants you a limited, revocable, non-transferable, non-exclusive right and license, without the right of sublicense, to reproduce, distribute and display, solely within the Authorized Materials, the items of H&Co Property that are made available to you pursuant to this Agreement, for the sole and express purpose of causing the Authorized Materials to be rendered in the Typefaces contained in the Self-Hosted Files.
2.2. 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.
2.3. Restrictions. You hereby acknowledge and agree that you shall not:
a. Create any customization, variant, adaptation or derivative work of any H&Co Property, or modify (or attempt to modify) any H&Co Property in any manner;
b. Duplicate, share, license, sell, rent, lease transfer, assign, distribute, offer or otherwise commercially exploit any H&Co Property, or any portion thereof, to any third party by any means without the express written consent of H&Co (For clarity, advertising and design agencies are not permitted to use this license to host webfonts for their clients. Each such client must purchase their own license);
c. Disobey any requirements, procedures, policies or regulations of H&Co, including downloading or copying any H&Co Property in any manner other than expressly permitted, or using any embedding technique other than the CSS @font-face tool (e.g. Cufon);
d. Take any action that interferes with or disrupts (or attempts to interfere with or disrupt) any H&Co Systems;
e. Modify any website so as to falsely imply that it is associated with H&Co;
f. Use the H&Co Property to infringe the rights, including intellectual or other proprietary rights of any other Person;
g. Alter, remove or obscure H&Co’s proprietary notices, including copyright, trademark, or other legal notices in any H&Co Property;
h. 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 H&Co Property;
i. Embed or incorporate any H&Co Property into any document, medium, application, software, product, or service, except as expressly permitted herein; and
j. Continue to use any H&Co Property after termination of this Agreement.
3. RESPONSIBILITIES OF LICENSEE. During the Term, You shall be solely responsible for the following:
a. Payment of all contemplated fees to H&Co;
b. Creation of your Login Credentials and maintenance of their secrecy and security (you are strictly responsible for any changes to your Service effected through the use of your Login Credentials, regardless of whether such activities are undertaken by you, your employees, agents or subcontractors, or any other Person)
c. Configuration, performance, implementation, deployment and monitoring of all operations you conduct using the H&Co Property, including: (i) the selection and configuration of the Typefaces, (ii) the correct identification of your Pageviews, and (iii) the monitoring of the Term of this Agreement;
d. Installing any Self-Hosted Files; configuring the server architecture surrounding the Self-Hosted Files, according to H&Co’s instructions (as applicable); and maintaining this valid configuration throughout the Term, using commercially reasonable efforts to prevent any Person or computer from accessing any H&Co Property other than as expressly provided for in this Agreement, including, without limitation, causing any H&Co Property to be linked to or embedded into a web page, digital advertisement or email other than the Authorized Materials;
e. Providing H&Co with a valid email address at which you are able to receive mail, monitoring this address for notices, and maintaining it as current and accurate throughout the Term;
f. Properly canceling this Agreement, should you wish to discontinue the Agreement during the Term, or if you wish to not renew the Agreement; and
g. Deleting all H&Co Properties that remain in your possession after the Term of this Agreement.
4. DISCLAIMERS. You hereby acknowledge and agree that:
4.1. Some Viewers of your Authorized Materials may be unable to see the Typefaces due to their use of unsupported web browsers or email clients, or because of other circumstances on their computers or networks.
4.2. H&Co may, but has no obligation to, terminate this License and demand the immediate removal of any H&Co Property from Licensees or accounts that it determines in its sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or violates any party’s intellectual property or any provision of this Agreement.
5. PAYMENT AND TAXES.
5.1 Pricing for Self Hosting is posted on our website and may be changed from time to time. Changes will not be applied retroactively to existing users and will take effect on the first renewal of Service after any such change. H&Co may send you a notice to the email address you provide notifying you of any such changes. Fees are derived from the number of font packages requested, and the number of allowable Monthly Pageviews. H&Co reserves the right to monitor Licensee’s Pageviews during the Term, and Licensee agrees to provide H&Co with website, banner advertisement and HTML email analytics data (e.g. Google Analytics Reports) upon request. If Licensee’s Pageview total is exceeded for three (3) consecutive Months, Licensee agrees to pay H&Co the additional fee contemplated for the additional Pageviews. You may add Pageviews or font packages at any time. You acknowledge that adding any Pageviews or packages not expressly provided for on an attached Order Document will result in additional fees.
5.2 A valid credit card number is required in order to sign up for self-hosting. You hereby represent and warrant that you are authorized to use the credit card provided to us in association with your Login Credentials. If we cannot process your credit card for any reason, we may need to suspend your Service until payment can be processed.
5.3 Based on your choice, H&Co will charge your credit card at signup for either twelve (12) Months of self hosting in advance, or perpetual rights, at the rate specified for the fonts, styles and pageviews that you specify during the sign-up process. Unless you sign up for perpetual rights, or cancel self hosting as provided below, your Service will renew automatically. Ten (10) days before the anniversary of the Effective Date, H&Co will charge your credit card automatically for the next twelve (12) Months of self hosting . You may not cancel self hosting during the last ten (10) days of the then-current Term. Forty (40) days before your Term expires, H&Co will send a notice to the email address associated with your Login Credentials, reminding you that your self hosted license will renew automatically.
5.4 You may increase the amount of fonts, styles and Pageviews on your account at any time. If you upgrade your fonts, styles and Pageviews, as applicable, during the Term, your credit card will be automatically charged an amount equivalent to the difference between your current rate and the new rate for the number of Months remaining in the then-current Term, or the perpetual charge for the upgrade, as applicable. Any renewals will be charged at the rate applicable at the time of such renewal.
5.5 You may not decrease the amount of fonts, styles and Pageviews on your account during a given twelve (12) Month Term. You may only decrease the amount of fonts, styles and Pageviews on your account for the subsequent Term, if applicable.
5.6 All amounts paid pursuant to this Agreement are non-returnable and nonrefundable. No refunds will be granted for partial use of the Service or unused Months. No exceptions will be made.
5.7 All fees will not include 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 required by the law of the state Licensee lives or operates in, Licensor collects applicable state sales tax, which will appear as a separate line item on Licensee’s Order Document(s).
6.1. You acknowledge and agree that H&Co is and will be the exclusive owner of all worldwide right, title and interest in and to the H&Co Properties including, without limitation, all copyright, patent, trademark, trade secret and other intellectual property rights, in and to the H&Co Properties. Any and all modifications, customizations, variations or adaptations to the H&Co Properties, regardless of origin, shall automatically be deemed to be included in the definition of “H&Co Properties” as applicable hereunder and shall become part of, and subject to, this Agreement.
6.2. You agree not to challenge H&Co’s rights in or to the H&Co Properties, or the validity of any intellectual property or other right of H&Co therein, or to infringe H&Co’s rights therein. All goodwill that may become attached to H&Co’s trademarks as a result of your use of the H&Co Properties shall inure to the exclusive benefit of H&Co. You shall refrain from using H&Co’s trademarks as part of any corporate, trade or firm name or style of yours. You shall not create a combination mark consisting of any of H&Co’s trademarks with the proprietary marks of any other Person. You shall not take any action that could reasonably be expected to impair the registrability, validity or enforceability of any of H&Co’s trademarks, nor shall you 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 H&Co, infringe or otherwise violate H&Co’s rights to its own trademarks.
7. UPDATES AND UPGRADES. If, at any time, H&Co offers a new version of any H&Co Property that is intended to improve on its functionality or ease-of-use, or add enhancements (each, if any, an “Update”), you must possess a valid license to such previous H&Co Property in order to use such Update. All Updates, if any, are also the property of H&Co and shall be provided to you on a license exchange basis. You agree that by using an Update, you voluntarily terminate your right to use any previous version of the H&Co Property. Upgrades may be licensed to you by H&Co with additional or different terms. Nothing in this Agreement shall be construed to obligate H&Co to provide an Update of any to you under any circumstances.
8. TRANSFER OF RIGHTS PROHIBITED.
8.1 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.
8.2. 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 H&Co Property in any manner.
8.3 Any Transfer in violation of this Agreement will be null and void.
9. RENEWAL; CANCELLATION OR TERMINATION.
9.1. Unless you have elected for the perpetual term option, This Agreement will renew automatically unless affirmatively canceled by you. You are solely responsible for the cancellation of this Agreement.
9.2 H&Co has the right, in its sole discretion to suspend or terminate this Agreement and refuse any and all current or future use of the H&Co Properties, for any reason at any time.
9.3 Upon termination, cancellation or expiration of this Agreement for any reason, Licensee must return or destroy all H&Co Property related to this Agreement in their possession, within ten (10) business days. For clarity, Licensee does not have to return or destroy any validly obtained Licensed Font Software pursuant to this Section.
10.WARRANTIES AND LIABILITY; INDEMNIFICATION.
10.1. You represent and warrant that (a) you are a Person; (b) you are at least eighteen (18) years of age or older; (c) all information you submit is truthful and accurate and does not hide or misrepresent your identity; and (d) you have the right to disclose any information you submit to H&Co. You, at your sole expense, shall indemnify H&Co, its agents, employees, officers, directors, shareholders, advisors, successors, and assigns and any of their affiliates, and hold them harmless against all losses, damages, claims, expenses (including, but not limited to, third party claims and attorneys fees and court costs) (any of the foregoing, a “Loss”) arising out of or resulting from: (i) any unauthorized use of the H&Co Property (unless and only to the extent the Loss is attributable to a material breach by H&Co of any obligation under this Agreement), (ii) any material breach by you of this Agreement or (iii) violation of any rights of a third party.
10.2. The H&Co Property is provided on an “as is” and “as available” basis. To the extent permitted by applicable law, H&Co disclaims all warranties, representations and guarantees, express or implied, as to merchantability, fitness for any particular purpose, or otherwise with respect to the H&Co Property. In addition, there is no warranty of non-infringement, title or quiet enjoyment. You acknowledge and agree that YOU bear the entire risk as to the performance of the H&Co Property. H&Co does not warrant that (a) the H&Co Property will meet your specific requirements, or (b) the quality of any products, information or other material purchased or obtained by you through this Agreement will meet your expectations.
10.3. To the extent permitted by applicable law, H&Co disclaims all liability for 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 H&Co 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. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose.
10.4 You are not granted any right to use the H&Co Property 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.
10.5 The sole remedy available to you concerning use of the H&Co Property by you is, and H&Co’s entire liability under this Agreement for any claim for damages relating to the use of the H&Co Property, whether based in contract, tort, strict liability, negligence or otherwise, shall be limited to one hundred dollars ($100.00).
10.6. The disclaimers of warranty set forth in this section 10 constitute an essential part of this agreement.
11. FORCE MAJEURE
H&Co shall not be liable for damages and you will not have the right to terminate this Agreement for any delay or default resulting directly or indirectly from acts of nature, forces or causes beyond H&Co’s 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.
12. 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 H&Co, be in (and if any Action is originally brought in another venue, the Action shall at the election of H&Co 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.
13. CONFIDENTIALITY. Licensee shall keep confidential and shall not knowingly disclose to third parties or otherwise use (other than in the exercise of its rights under this Agreement) any (i) business information of H&Co, including the amount of the payment set forth in the attached Order Document(s), except as may be required by law or regulation, (ii) intellectual property of H&Co (including, without limitation, patent rights, copyrights, trademarks, trade secrets, and know-how), (iii) marketing, product strategy and service information of H&Co, including information pertaining to the performance, features, capabilities, services, and documentation of the Typefaces, and (iv) any other information of H&Co that is identified as proprietary or confidential or otherwise should be reasonably understood to be confidential (collectively “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that (a) is known to Licensee at the time of disclosure or becomes known to Licensee without breach of this Agreement; (b) is, or becomes, publicly known through no wrongful act of Licensee or any Licensee Party; (c) is rightfully received from a third party without confidentiality obligations; (d) is independently developed by Licensee or any Licensee Party withhout the use or benefit of Confidential Information; (e) is approved for release upon a prior written consent of H&Co; or (f) is disclosed to the extent necessary to respond to a valid order by a court or other governmental body, as required by law; provided that Licensee must (x) notify H&Co immediately upon receipt of such court order or other document requiring disclosure, so H&Co has time to object and move for a protective order, (y) redact mutually agreed-upon portions of such Confidential Information to the fullest extent permitted under applicable law, rule, regulation, or government or court order, and (z) file any information disclosed in response to such order under seal or request that the court or regulatory authority seal such Confidential Information. Each party shall have the right to disclose this Agreement and/or its contents to its attorneys, insurers and accountants. H&Co is permitted to name Licensee as a client for promotional purposes. Except as may ultimately be required by such court order or law, Licensee’s obligations with regard to such Confidential Information, as set forth in this Paragraph 13, will remain in full force and effect.
14. 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.
15. 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.
16. 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.
17. ENTIRE AGREEMENT. This Agreement, with its Order Document(s) constitutes the entire understanding between the parties concerning the subject matter, and supersedes all previous agreements, promises, representations and negotiations between the parties concerning the same. No terms and conditions of any purchase order, or other document will add to, modify or supersede the terms of this Agreement. The terms of this Agreement may only be modified by a writing signed by both parties.
18. SURVIVABILITY. Paragraphs 2.3, 6, 8 and 10-20 of this Agreement, and any terms that by their nature survive termination, shall survive the termination of this Agreement.
19.1 Any notice, approval, request, authorization, direction or other communication under this Agreement shall be sufficient if sent by 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.
19.2 Notice shall be provided to Licensee at the address set forth on Licensee’s Order Summary. Notice shall be provided to H&Co at the address set forth in the Preamble, or via email at firstname.lastname@example.org.
20.1. Commercial Items. With respect to any U.S. Government end user of the H&Co Property, the H&Co Property is, individually and collectively, a “Commercial Item,” as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
20.2. Equitable Relief. You hereby agree that any breach of this Agreement, including any unauthorized disclosure of the Confidential Information would cause irreparable harm to H&Co, and that in the event of any breach or threatened breach, H&Co will be entitled to obtain equitable relief in addition to any other remedy. H&Co’s rights and remedies under this Agreement shall be cumulative and not exclusive of any other rights or remedies provided hereunder or by law.
20.3 Captions; Construction. The section 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.