PLEASE READ CAREFULLY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”), WHICH CONSTITUTES A BINDING AGREEMENT BETWEEN YOU (OR THE COMPANY YOU REPRESENT) (COLLECTIVELY “YOU” OR “YOUR”) AND FESS WAVY, LLC, DOING BUSINESS AS, HARDWARE STUDIOS (“HARDWARE STUDIOS”).
By clicking the “Add to Cart” links found on the hardwarestudios.co website and/or by purchasing, installing, or using the licensed design (Design), You acknowledge that you have fully read, understand, and agree to be bound by this Agreement, in addition to any other supplemental terms and policies that this Agreement expressly incorporates by reference, which are thereby made part of this Agreement;
You represent that you are 18 years of age or older and You have the authority to enter into this agreement personally, or if on behalf of a company entering into this Agreement, to bind that company to the terms of this Agreement; and
You acknowledge and agree that the language of this Agreement is hereby expressly agreed to be the English language. By entering into this Agreement, You hereby irrevocably and unconditionally waive any law applicable to You requiring that this Agreement be translated to meet Your language.
If You do not agree to this Agreement, You should not purchase, install or use the Design. There are No Refunds. Your license for Hardware Studios is nonreturnable and nonrefundable.
DEFINITIONS:
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- “Affiliates” or “Affiliate” means an entity, institution, or organization that controls, is controlled by, or is under common control with another entity, institution, or organization, with at least majority ownership.
- “Confidential Information” shall mean all information in written, tangible, electronic, oral or any form whatsoever, that the disclosing party protects against unrestricted disclosure, provided that each oral disclosure of Confidential Information shall be confirmed in writing thirty (30) days following that disclosure. Confidential Information includes but is not limited to technical information relating to designs, formulae, data, test results, software, computer programs, processes, techniques, know-how, inventions, products, Designs and/or plans for future Designs.
- “Design” means the specific design software, product, and/or property licensed to You under the terms of this Agreement.
- “Designer” means creator of the Designs that Hardware Studios distributes on the Website.
- “Documentation” means the user manuals and supporting documentation in electronic format provided with the Design under this Agreement.
- “Effective Date” for this Agreement is the day You purchased the Design.
- “Hardware Studios” shall mean Fess Wavy, LLC and vice versa.
- “Intellectual Property” shall mean patents, copyrights, trademarks, trade secrets, and other intellectual property and proprietary rights pertaining to the Design and processes to print the Design, including, without limitation, software files, specifications, material lists technical information, marketing information, know-how, confidential and trade secret information, as well as any developments or improvements to the Designs made by Hardware Studios and provided by Hardware Studios to You.
- “License Fee” means the applicable fee or price for which You license the Design from Hardware Studios.
- “Software” shall mean (i) the Software, whether in whole or in part; and (ii) any manuals, specifications, and similar documentation related to the Software, that accompany the Software, or that are made available by Hardware Studios, which may change from time to time (“Documentation”).
- “Website” means any and all websites, digital parts stores, and online retail stores operated by Hardware Studios and/or its Affiliates, from which the Design was licensed.
- “Print” means to make physical copies of the digital Designs on a 3D printer.
- “Property” means Designer’s digital design file(s).
LICENSE:
The Designs transacted through the Website are licensed, not sold, to You for use only under the terms of this Agreement. Subject to the terms and conditions of this Agreement, Hardware Studios grants to You a limited, non-transferable, non-assignable, non-exclusive, fully paid, revocable, non-sublicensable license, during the Term (defined below) to permit You and those individuals authorized by You or Your company (“End Users”) to:
- install, use, execute and display the Software, in executable object code format only, solely for You or Your company’s own personal use or internal business operations; and/or to
- print physical copies of the Design on any 3D Printer that You own or control for personal and non-commercial use;
(“the License”);
****Note that portions of some Designs may be covered by a public license such as the Creative Commons and Open Source. In those cases, any portions of the Design not covered by a Creative Commons or Open Source license will be covered by this Agreement and License.
Licensing options above and beyond the usage described in this Agreement may be available for some Designs. Please contact the Designer directly for more information at dale@hardwarestudios.co to inquire into a commercial license agreement.
LICENSE RESTRICTIONS:
Except for the License, You are granted no other right in or to the Design, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise. You shall be primarily responsible and liable for the acts and omissions of any access to the Designs on Your behalf.
Without limitation, below are examples of uses that are NOT permitted under this Agreement and require purchase of a separate license from Hardware Studios:
- You agree that You are only allowed to use the Design on 3D Printers that You own or control.
- You agree not to use Hardware Studios digital files at more than one physical location.
- You agree not to share Hardware Studios Designs with other business entities (including without limitation, your advertising agency, dealer, subsidiary, parent company, service bureau, etc.).
- You agree to not distribute or make the Design available over a network where it could be used by multiple devices at the same time.
- You agree not to rent, lease, lend, sell or resell, redistribute, modify, give away, commercially exploit, make outside of the terms expressly provided for in this Agreement, or sublicense the Design.
- You agree not to (nor permit any person to) copy (except as expressly permitted by this Agreement or applicable law), decompile, reverse compile, decrypt, reverse engineer, disassemble, otherwise attempt to derive the source code of, modify, or create derivative works of the Design, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Design).
- You agree not to remove, alter, or conceal, in whole or in part, any branding, naming conventions, copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Design, whether in pre-Printed or Printed form.
- You agree not to circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software, such as features that restrict or monitor use of the Software;
- You agree not to make a derivative work of the Design, or use the Design to develop any service or product that is the same as (or substantially similar to) the Design;
- You agree not to publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Design, and/or use the Software to infringe, misappropriate or violate any third party’s intellectual property rights, moral rights, privacy or other personal right, or any law.
Any attempt to do so is a violation of the rights of the Designer and/or Hardware Studios. If You breach this restriction, You may be subject to prosecution and damages, in addition to an immediate penalty in the amount of fifteen thousand US dollars, a penalty based on the time required to trace distribution, as well as future sales losses for both potential digital and physical sales over a standard ten year lifespan. Should the Design be provided to others in violation of this agreement, You agree to inform recipients in violation of this License, who will also be subject to prosecution and damages. The above restrictions are limitations on the License where applicable, and Your full compliance with the above is a condition to the License.
OPEN-SOURCE SOFTWARE:
The Design may include third party software components incorporated into or distributed with the Design and are subject to open source and/or pass-through commercial licenses and/or notices (“Open Source Licensed Software” and “Open Source Licensed Software Terms and Notices”, respectively). You acknowledge any such Open Source Licensed Software is not licensed under (and is not subject to the terms of) this Agreement, and instead is separately licensed to you pursuant to the Open Source Licensed Software Terms and Notices, and to the extent any conflict exists between this Agreement and any Open Source Licensed Software Terms and Notices, the latter shall control. Any covenants, representations, warranties, guarantees, conditions, indemnities or other commitments made by Hardware Studios in this Agreement concerning the Licensed Software (if any), are made by Hardware Studios and not by any authors, licensors, or suppliers of, or contributors to, such Open Source Licensed Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, Hardware Studios does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Open Source Licensed Software.
OWNERSHIP & INTELLECTUAL PROPERTY:
You hereby acknowledge the Design is or may be protected by intellectual property rights laws, including without limitation copyrighted material, patented technology, trademarks and tradenames, trade secrets and other proprietary material and information of Designers and/or Hardware Studios and licensors. You will not remove, alter, or destroy any form of copyright notice, trademark, patent or other proprietary markings, or confidential legends placed upon or contained within the Designs, Documentation, or any component thereof.
You hereby acknowledge You acquire no ownership interest in the Designs by virtue of, purchasing, downloading, printing or otherwise using the Design. Hardware Studios reserves all right, title, and interest not expressly granted to You.
And You further acknowledge the Designs contain information and materials that are or may be confidential and proprietary to Hardware Studios, and therefore You agree that a breach or threatened breach of the License restrictions and Intellectual Property rights set forth above may cause Hardware Studios to suffer irreparable harm for which monetary damages will be inadequate, and accordingly, if Hardware Studios seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Section, Hardware Studios shall not be required to post a bond or to prove the likelihood of irreparable harm.
LIMITED WARRANTY:
Hardware Studios warrants the Design will perform as outlined in the user documentation in effect at the time of the commencement of the License for the limited warranty period following receipt of the Design. As used in this Section, “Limited Warranty Period” means One (1) Month.
Hardware Studios will correct substantial malfunctions occurring during this warranty period provided that such malfunctions are reproducible, your product is properly registered, and you give immediate notice and sufficient detail of such malfunctions to Hardware Studios. Non-substantial variation from the agreed upon functionalities shall not be considered and does not establish any warranty rights. Hardware Studios will have no responsibility in the event you fail to provide proof you licensed Hardware Studios models from Hardware Studios.
This limited warranty does not apply to software provided to you free of charge, for example, updates, pre-release, tryout, product samplers, not for resale copies of software, or to any software that has been altered by user, to the extent such alterations caused a defect. You acknowledge this Limited Warranty section is an essential term of the Agreement between You and Hardware Studios.
NO WARRANTY:
You expressly acknowledge and agree that use of the design is at Your sole risk and that the entire risk as to satisfactory quality, performance, accuracy, safety, and effort is with You. To the fullest extent permitted by law and not inconsistent with the Limited Warranty, the Design and any support services performed or provided by Hardware Studios are provided “as is”, without warranty.
Hardware Studios hereby disclaims all warranties and conditions with respect to the Design and any services provided, express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quite enjoyment, and non-infringement of third-party rights, including intellectual property rights.
Hardware Studios does not warrant against interference with Your enjoyment of the Design; the functions contained in, or services performed or provided by, the Design will meet Your requirements; the operation of the Design or services will be uninterrupted or error-free, or defects in the Design or services will be corrected. No oral or written information or advice given by Hardware Studios or its authorized representative shall create a warranty.
****Some Jurisdictions do not allow for the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, and the exclusions in this Section, without regard to the enforceability of the entire Agreement, may not apply to You*****
LIMITATION OF LIABILITY:
In no event will Hardware Studios be liable under, or in connection with this Agreement, for: (a) any consequential, indirect, special, incidental, or punitive damages; (b) any loss of profits, loss of business, loss of revenue, or loss of anticipated savings; (c) any loss of or damage to data, reputation, or goodwill; and (d) the cost of procuring any substitute goods and services. The combined agreed liability of Hardware Studios under this Agreement shall not exceed the cost of the Design paid by You.
The foregoing exclusions and limitations shall apply: (a) even if Hardware Studios has been advised, or should have been aware of the possibility of losses, damages, or costs; (b) even if any remedy in this Agreement fails for lack of essential purpose; and (c) regardless of the theory or basis of liability (including without limitation breach of contract, tort, negligence and strict liability). Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to You, such exclusions and limitations shall not apply. You acknowledge and agree that this section Limitation of Liability is an essential term of this Agreement.
INDEMNIFICATION:
In the event of any third party demand, claim, suit, action and/or proceeding against Hardware Studios, and/or any of the foregoing entities’ respective directors, officers, employees, agents, representatives, customers, suppliers, or licensors (each, an “Indemnitee”), and it is based upon or arises from Your: (a) use of the Design, in printed form or in digital and/or software form (or part thereof; (b) breach of any provision of this Agreement; and/or (d) violation of any Law applicable to You, (each of the foregoing, a “Claim”) then, upon written request by Hardware Studios (to be decided in its sole discretion), You agree to assume full control of the defense and settlement of the Claim; provided, however, that (a) Hardware Studios reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Claim; and (ii) You shall not settle any Claim, or admit to any liability thereunder, without the prior express written consent of Hardware Studios.
In addition, and regardless of whether (or the extent to which) You participated in the defense and/or settlement of a Claim, You agree to indemnify and hold harmless the Indemnitee for and against: (a) any costs and expenses (including without limitation reasonable attorneys’ fees) incurred by the Indemnitee in the defense of such Claim; and (b) any amounts awarded against, or imposed upon, the Indemnitee under such Claim, or otherwise paid in settlement of the Claim (including without limitation damages, losses, liabilities, and fines).
TERM:
This Agreement commences on the Effective Date and will remain in full force and effect unless and until this Agreement is terminated in accordance with this Section (the “Term”).
TERMINATION:
This Agreement and the License are effective until terminated. Hardware Studios reserves the right to: (a) immediately terminate this Agreement, or otherwise modify, suspend or discontinue Your access to and use of the Design (or any part thereof), without any notice to you, in the event You commit any breach under this Agreement; and/or (b) terminate this Agreement for convenience at any time upon e-mail notice to you, which will be deemed given upon transmission. Your sole remedy in the event You object to any provision of this Agreement or become dissatisfied with the Licensed Software, is to terminate this Agreement.
CONSEQUENCES OF TERMINATION; SURVIVAL:
Upon termination of this Agreement: (a) the License will automatically terminate; (b) You shall immediately cease all access to and use of the Design; and (c) You shall, unless directed otherwise by Hardware Studios in writing, promptly uninstall and permanently delete any and all copies of the Design installed on Your Device, and, as directed in writing by Hardware Studios, return, permanently delete, or destroy any other information or materials that are proprietary to Hardware Studios.
Thereafter, You may be requested to certify to Hardware Studios in writing that You have complied with Your obligations in this Section.
Termination of this Agreement shall not affect any right or liability accrued by either You or Hardware Studios as of the date of termination. Any provision in this Agreement that is stated to survive termination, shall survive.
GOVERNING LAW AND JURISDICTION:
This Agreement shall be governed as to validity, interpretation, construction, effect, and in all other respects by the laws of the United States of America and the local laws of the State of Texas, without regard to the choice of laws. In the event of a dispute arising under or related to this Agreement, Customer agrees to submit to the sole and exclusive jurisdiction and venue for any such litigation to the U.S. District Court for the Western District of Texas, Austin Division, or a state court of competent jurisdiction in Travis County, Texas. Customer hereby irrevocably consent to the venue and personal jurisdiction of those courts.
Furthermore, You: (a) agree that any proceedings to resolve or litigate any claim, dispute or controversy will be conducted solely on an individual basis (and not in any class action or class-wide proceeding), and that You may initiate such proceedings only on its own behalf; and (b) agree not to participate in claims, disputes, or controversies brought in an attorney general or representative capacity, or in consolidated claims, disputes, or controversies involving another end user.
Notwithstanding anything in this Agreement to the contrary, Hardware Studios may seek injunctive relief, specific performance, and/or other equitable relief in any court worldwide that has competent jurisdiction.
GENERAL:
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- Entire Agreement. This Agreement, together with all supplemental terms and agreements that are incorporated by reference herein represent the entire agreement between You and Hardware Studios with respect to the subject matter hereof and supersedes and replaces any and all prior and contemporaneous oral or written understandings and statements with respect to such subject matter.
- Assignment. Hardware Studios may assign this Agreement (or any of its rights and obligations hereunder) without Your consent and without notice.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
- Waiver. No failure or delay on the part of You or Hardware Studios hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
- Notices. You agree that Hardware Studios may send You notice by email, via your User Account, by regular mail, and/or via postings on or through the Design. Except as stated otherwise in this Agreement or required by law applicable to You, You agree to send all notices to
Fess Wavy, LLC dba Hardware Studios:
4401 Clarno Dr, Austin, TX 78749
Tel: 917-836-4524
E-mail: dale@hardwarestudios.co
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- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement (for example, Hardware Studios’ affiliates and Indemnitees), there shall be no third-party beneficiaries to this Agreement.
- U.S. Government Restricted Rights. All Licensed Software and Documentation provided to the U.S. Government are provided with the same commercial license rights and restrictions described elsewhere herein.
- Export Compliance. You agree to use the Design in compliance with all laws applicable to You. Without limiting the generality of the foregoing sentence, You must not use or otherwise export or re-export any Design in violation of any Export Control Laws. “Export Control Laws” means all export and re-export control laws applicable to You.
