Color Planner - End User License Agreement

COLOR PLANNER END USER LICENSE TERMS

The terms and conditions set forth in these Color Planner End User License Terms ("EULA") shall be applied to any and all deliveries of Color Planner Software ("Software") executed between you ("Customer") and SnowFlower Oü ("SNOWFLOWER") or any of SNOWFLOWER's affiliates, representatives, dealers or other distributors ("Co-operative Partner").

1 IMPORTANT The Software is a proprietary product of SNOWFLOWER and it is protected by copyright laws and international treaties. The limited license rights defined in this EULA are granted by SNOWFLOWER and Co-operative Partners. The license is granted for the Customer mainly for the Customer's personal, non-commercial purposes as defined in the Documentation ("Purpose").Any use for professional purposes is subject to specific terms defined in this EULA and restrictions of this EULA.

BY INSTALLING AND USING THE SOFTWARE THE CUSTOMER INDICATES THAT THE CUSTOMER ACCEPTS, UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, PLEASE RETURN THE SOFTWARE AND ALL POSSIBLE COPIES THEREOF TO THE DISTRIBUTOR FROM WHOM THE SOFTWARE HAS BEEN OBTAINED.

2 DEFINITIONS

For the purpose of this EULA the following terms shall have the meaning defined herein:

2.1 "Accompanying Material" shall mean all written, digital or multimedia materials delivered together with the Software including Documentation, color cards, digital images, videos, and sample plans.

2.2 "Documentation" shall mean any and all user manuals, handbooks and other corresponding written materials relating to the Software and required for the correct use thereof, which are accompanied with the Software or otherwise provided by SNOWFLOWER to the Customer.

2.3 "Image Masking Service" shall mean image masking service offered and provided by SNOWFLOWER from time to time, subject to orders of the Customer and acceptance thereof by SNOWFLOWER.

2.4 "Operating Environment" shall mean technical environment in which the Software has been properly tested and is in compliance with. The operating environment is defined in SNOWFLOWER's website from time to time or other location instructed by SNOWFLOWER or its Co-operative Partners.

2.5 "Software" shall mean object code version of SNOWFLOWER's computer software named Color Planner, as marketed and licensed as a standard software product by SNOWFLOWER, as well as all updates, enhancements or upgrades thereof.

3 GRANT OF LICENSE AND LIMITATIONS THEREOF

Upon terms and limitations and against full and timely payment of all applicable fees and charges SNOWFLOWER grants to the Customer:

(i) A right to install the Software to one PC workstation owned and operated by the Customer.

(ii) A restricted, non-exclusive and non-transfereable license to use the Software solely for purpose of the Purpose in compliance with the Documentation.

(iii) A restricted, non-exclusive and non-transfereable license to use the Accompanying Material as a part of the Software solely for non-commercial personal purposes..

The Customer shall not:

(i) Transfer the Software to any other computer or platform.

(ii) Make any copies of the Software, except to the extent allowed for backup purposes in accordance with mandatory legislation.

(iii) Distribute, rent, lease, loan, sublicense or resell the Software or the Accompanying Material or any part thereof nor the license or any copy of it.

(iv) Reverse engineer, decompile, disassemble, re-engineer, or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Software, or the Software's structural framework, or to use the Software in whole or in part for any purposes except as defined in this EULA.

(v) Modify, enhance or in any other manner change the Software or create derivative works based on the Software or the Accompanying Material.

(vi) Remove, obliterate or otherwise alter SNOWFLOWER's or third parties' proprietary rights notices.

(vii) Assign or transfer any of its rights and obligations to the Software or the Accompanying Material arising from this Agreement to any third party without the prior written consent of SNOWFLOWER.

(viii) Copy, distribute, reproduce or otherwise exploit the Accompanying Material for any other purposes than for the non-commercial purpose.

4 DELIVERY AND ACCEPTANCE

The Customer agrees at its own expense to prepare technical operating environment in conformity of requirements defined in Documentation or otherwise by SNOWFLOWER. Unless otherwise agreed, SNOWFLOWER or its Co-operative Partner shall provide the Customer access to a web site where the Customer is allowed to download a copy or the Software. The Customer shall be exclusively responsible for the selection, installation, management and control of its use of the Software.

The Customer undertakes to perform the acceptance test within fourteen (14) days after the delivery of the Software ("Acceptance Period"). The Customer shall without delay inform SNOWFLOWER in writing of all errors or deficiencies detected in the Software during the Acceptance Period. Errors which do not substantially interfere with the use of the Software shall not prevent the acceptance of the Software. If the Software is not accepted by the Customer in the acceptance test, the Customer shall within abovementioned time period contact SNOWFLOWER and the parties shall negotiate how to solve the problem occurred. Unless the parties reach the solution how to correct the error, SNOWFLOWER may refund the Customer and the Customer shall uninstall the Software and return the Software and all Accompanying Materials to SNOWFLOWER. In any event the Software shall be deemed to be accepted by the Customer when the Customer takes the Software into production use (i.e. starts using the Software for the Purpose).

5 INTELLECTUAL PROPERTY RIGHTS

SNOWFLOWER or its suppliers retain all rights not expressly granted in this EULA, including without limitation the title and interest to and in the Software and the Accompanying Material and all intellectual and industrial property rights and other proprietary rights. SNOWFLOWER neither grants nor otherwise transfers any rights of ownership or copyrights in the Software or the Accompanying Material to the Customer and the Customer shall have only such license rights to use the Software and the Accompanying Material as expressly specified herein.

6 PAYMENTS

In consideration of the Customer's right to use the Software and the Accompanying Material granted pursuant to the terms and conditions of this EULA, the Customer agrees to pay SNOWFLOWER and/or its Co-operative Partner fees indicated by a party which delivers the Software and the Accompanying Material to the Customer.

7 IMAGE PROCESSING SERVICE

Unless otherwise defined in the Documentation, the Software contains Genius Digital Image Masking System which makes it possible for the Customer to use the Customer's own photos if the Customer orders Image Masking Service from SNOWFLOWER. Image Processing Service is chargeable additional service which SNOWFLOWER offers at its discretion and subject to then current prices and delivery terms. The ordering and payment of Image Processing Services takes place through the Software from SNOWFLOWER or a service provider nominated by SNOWFLOWER. Image Masking Service is offered through internet and applicable payment methods are defined through an user interface included in the Software. Any delivery of photos is subject to full payment of service fees through then applicable payment methods.

8 LIMITED WARRANTY

SNOWFLOWER warrants and represents that the Software will, at the time of the delivery and for a period of ninety (90) days thereafter, substantially perform as stated in the Documentation provided by SNOWFLOWER to the Customer and on the Operating Environment. For avoidance of doubt, any deviation from Operation Environment or any changes in the Customer's technical environment (e.g. updates or service packs) may cause faults based on incompatibleness with Operating Environment and SNOWFLOWER is not liable for such faults.

In the event the Customer detects that the Software does not substantially perform as stated in the Documentation and such non-performance is caused by components contained in the Software, the Customer has a right to terminate the license granted herein. In any such event the Customer must uninstall the Software and upon written request SNOWFLOWER or its Co-operative Partner who has delivered a copy of the Software to the Customer shall refund the license payment (if any).

Except as expressly defined above, SNOWFLOWER AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND ACCOMPANYING MATERIALS "AS IS" AND HEREBY SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED.

The Customer acknowledges and agrees that without prejudice to what has been stated above, SNOWFLOWER neither warrants nor represents that the Software will meet the expectations of the Customer. Furthermore, SNOWFLOWER shall have no obligation to correct any errors in the Software if such errors are a result of a natural disaster, fault or negligence of the Customer or any third party and/or improper, incorrect, or unauthorised use of the Software, or use of the Software in manner, which the Software has not been designed, manufactured or specified for, or an external cause such as a failure and/or disruption in a electricity grid. The Parties acknowledge and agree that under no circumstances shall SNOWFLOWER be liable to correct any errors in the Software, if the Customer or any third party not authorised by SNOWFLOWER have made any modifications to the Software or if the Customer has not been strictly in compliance with this EULA.

All the Accompanying Materials are delivered to the Customer for demonstrative purposes "AS IS" and SNOWFLOWER makes no warranty whatsoever as to the Accompanying Materials.

THE FOREGOING WARRANTIES SET FORTH THE ENTIRE LIABILITY OF SNOWFLOWER AND THE FOREGOING WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION TO THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9 CONFIDENTIALITY

The source code of the Software is a trade secret of SNOWFLOWER and shall not be disclosed to the Customer. The Software and the Accompanying Material contain confidential information of SNOWFLOWER ("Confidential Information"), which is valuable to SNOWFLOWER. Confidential Information means all non-public information related to the Software or SNOWFLOWER, including but not limited to proprietary and trade secret information. The Customer is not allowed to disclose the Confidential Information to any third party or exploit Confidential Information for any purposes. The Customer agrees to use all reasonable efforts to prevent the unauthorized use, copying, publication or dissemination of the Software and the Accompanying Material.

10 LIMITATION OF LIABILITY

The Customer understands that in no event computer-aided design performed by nonprofessional designer is not intended to substitute for trained, experienced or other professional work and/or proper tests. Further, the Customer understands and agrees that the Software has not been tested in all situations under which it may be used by the Customer. SNOWFLOWER or its Co-operative Partners are not liable in any manner whatsoever results obtained by the Customer through the Software or decisions made by Customer based on use of the Software. Further, due to the technical reasons or inaccuracy in the screens, printers etc. the colours may differ from the real colours and therefore all such colours must be compared in the field and from the colour cards of paint manufacturers.

IN NO EVENT, INCLUDING BUT NOT LIMITED TO PRODUCT LIABILITY CLAIMS AND INTELLECTUAL PROPERTY INFRINGEMENTS, SHALL SNOWFLOWER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM SNOWFLOWER'S, ITS CO-OPERATIVE PARTNERS' OR SOFTWARE'S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER OR THE PERFORMANCE OR USE OF ANY SOFTWARE OR SERVICES SOLD PURSUANT HERETO. IN NO EVENT SHALL THE AMOUNT OF SNOWFLOWER'S LIABILITY EXCEED THE AMOUNTS PAYABLE BY CUSTOMER HEREUNDER.

11 TERM AND TERMINATION

The rights granted herein are in force until terminated by either party. SNOWFLOWER has a right to immediately terminate this EULA and the license shall expire in the event of any default by the Customer of any term, covenant, or obligation under this EULA or upon assignment or transfer of the Software, the Accompanying Material or this EULA. Upon expiration of the license for any cause, the Customer must uninstall the Software and the Accompanying Material and destroy all copies thereof.

12 SPECIFIC TERMS FOR PROFESSIONAL USE

In case the Customer desires to use the Software for the professional purposes the following conditions apply in addition to other terms and conditions of this EULA: Professional purposes means any use beyond private use, including without limitation offering of design or planning services to third parties by utilizing the Software. The Customer agrees that this version of the Software is mainly intended for noncommercial personal purposes of the users. SNOWFLOWER assumes no liability of the Customer's performance of duties towards its own customers, any reclamations made by its customer's for whatever reason or the Software's performance for Customer's purposes. Any other use than expressly granted in this EULA is prohibited. Any Accompanying Material is not allowed to be used for any commercial or professional purposes without express prior written permission of SNOWFLOWER. The Customer understands that any such use may constitute a violation of intellectual property rights.

The Customer agrees to defend, indemnify and hold SNOWFLOWER and its Co-operative Partners harmless at no cost or expense to SNOWFLOWER and its Co-operative Partners against any and all claims, suits and/or actions based on professional or commercial use of the Software by the Customer, provided, however, that SNOWFLOWER and its Cooperative Partners promptly notifies the Customer in writing of such claims, suits and/or actions and permits the Customer to defend or settle any claims, suits and/or actions so arising and gives the Customer all necessary information, assistance and authorisations, which are necessary to the Customer.

13 MISCELLANEOUS

SNOWFLOWER or its Co-operative Partners may, but are not obligated to release updates to Software to their websites.

SNOWFLOWER shall not be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or nonperformance is due to an event of Force Majeure. For purposes hereof, events of Force Majeure are events beyond the control of SNOWFLOWER whose effects are not capable of being overcome without unreasonable expense and/or loss of time to SNOWFLOWER. Events of Force Majeure shall include (without being limited to) war, acts of government, export regulations, acts of terrorism, natural disasters, fire and explosions. This EULA shall be governed by and construed in accordance with the laws of Finland, excluding its choice of law provisions.

If, at any time, any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable in any respect, the legality, validity or enforceability of the remaining provisions shall in no way be affected or impaired thereby. The invalid provision shall be replaced by a valid one which achieves to the extent possible the original purpose and commercial goal of the invalid provision. A failure to exercise, or any delay in exercising, on the part of either party, any right or remedy hereunder shall neither operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.