Last updated on February 28, 2017
This Agreement governs access to the site located at www.separo.io (the “Site”) as well as all services made available therefrom, including without limitation the Separo services, Separo Platform, API and all Separo Materials (each as defined below and together the “Services”). If Company has placed or later place an order (whether through the URL, order form, email, phone or otherwise offered by Separo) with Separo (Company’s “Order”) seeking to access and use certain of the Services requiring registration, Separo is willing to accept Company’s Order and provide Company with access to and use of those Services only if Company complies with the terms and conditions of this Agreement.
Without limiting the foregoing, the Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in this agreement.
PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, SEPARO IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SERVICES AND YOU MUST NOT ACCESS OR USE THE SERVICES. IF YOU ACCESS OR USE THE SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
THE COMMUNICATIONS BETWEEN YOU AND SEPARO VIA THE SITE AND SERVICES ARE ELECTRONIC. YOU CONSENT TO RECEIVE COMMUNICATIONS FROM SEPARO IN AN ELECTRONIC FORM. YOU AGREE THAT ALL TERMS AND CONDITIONS, AGREEMENTS, NOTICES, DISCLOSURES AND OTHER COMMUNICATIONS THAT WE PROVIDE TO YOU ELECTRONICALLY SATISFY ANY LEGAL REQUIREMENT THAT SUCH COMMUNICATIONS WOULD SATISFY IF THEY WERE IN WRITING.
This Agreement is entered into as of the earlier of the date Company first submits an Order relating to the Services or first accesses or uses the Site or Services (the “Effective Date”). This Agreement consists of the following terms and conditions and each Order submitted by Company and accepted by Separo, each of which is incorporated in and made a part of this Agreement. Unless otherwise amended as provided herein, this Agreement will exclusively govern Company’s access to and use of the Site and Services and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Company’s access to and use of the Services and the Sites. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Separo reserves the right, at any time, to change or modify the Services or this Agreement, by making such change or modification available on the Site or by providing other notice to Company. Any such change or modification will be effective thirty (30) days after posting on the Site or such other notice. As applicable, Company will be deemed to have agreed to such change or modification through Company’s continued use of the Site or Services.
Separo has developed a proprietary method for recommending optimal print settings for screen and/or other types of printing (the “Separo Method”). During the Term, in consideration of the payments and mutual promises contained in this Agreement, subject to the terms and conditions set out in this Agreement:
a. Subject to Company’s completion of the registration process identified by Separo, Separo will provide to Company a specific URL or application ID to enable Company to access the Separo Services and Method, and application programming interface (the “API”), solely via the Company website or application specified in the registration process (the “Company Access Point”). Company shall at all times be responsible for all activities originating with the Company Access Point or credentials granted hereunder to Company and shall immediately notify Separo of any actual or suspected compromise thereof.
b. Separo grants Company a limited, royalty-free, nonexclusive, nontransferable, nonassignable license (without right of sublicense) to use the Services, API and any related supporting materials and documentation provided by Separo to Company (collectively “Separo Materials”) solely for purposes of querying the Separo Method platform and database associated therewith (the “Separo Platform”) and to retrieve information therefrom recommending optimal print output images and/or respective colors (“Print Output”) for use in Company’s internal business applications.
c. The foregoing license is subject to the following restrictions:
i. Company shall not use the Services, API or Separo Platform in any manner or for any purpose that violates any law or regulation.
ii. Company shall not sell, lease or sublicense the Services, Separo Materials or Separo Platform or access thereto. Company shall not use the Separo Materials, or permit the same to be used, in any manner, whether directly or indirectly, that would permit the disclosure of the Separo Materials or in any way collects or attempts to collect any system data or requirements of the Separo Platforms.
iii. Separo shall have the right to limit the Services and permitted API calls (the “Call Threshold”) to any Separo database, in Separo’ reasonable discretion. If at any time Company believes it will exceed the Call Threshold or actually exceeds the Call Threshold, Company shall notify Separo. Separo may decrease the Call Threshold upon prior notice to Company and may, but is under no obligation to, permit usage in excess of the Call Threshold subject to the parties’ mutual agreement upon additional terms and conditions, including without limitation, additional economics payable to Separo.
iv. With the exception of Print Output, Company shall not copy, duplicate or store any data retrieved or derived from the Separo Materials or Separo Platform. Company shall not modify, reverse engineer, decompile or otherwise alter the Services, API, Separo Platform or the Separo Materials.
v. Company Access Point shall not (a) contain, be bundled with, or otherwise enable any viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, adware, spyware or other computer programming routines that will damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (b) contain any material, product or services that violate or encourage conduct that would violate any criminal laws, any other laws, or any third party rights; (c) incorporate any Publicly Available Software, in whole or in part, in a manner that may subject the Separo Platform, in whole or in part, to all or part of the license obligations of any Publicly Available Software. As used herein, the term “Publicly Available Software” means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models; and that requires as a condition of use, modification or distribution that such software or other software incorporated into, derived from or distributed with such software: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of making derivative works; or (3) be redistributable at no charge.
Separo shall have the right but not the obligation to monitor any usage of the API or Separo Platform in any manner. Separo reserves the right to suspend or terminate access immediately in the event of any violation of the license restrictions.
a. Separo shall have no obligation to provide any technical assistance to Company hereunder.
b. Separo reserves the right to update or enhance the API or other Separo Materials, the Call Threshold, or the Separo Platform (each a “Modification”) at any time, in Separo’s sole discretion. Separo shall use commercially reasonable efforts to provide notice of such Modifications within a reasonable period of time thereafter. Company acknowledges that such Modifications may affect the Company Access Point and may require Company to make changes to the Company Access Point to continue to be compatible with the API or Separo Platform.
c. In the event that, and for so long as, Separo determines that any part of the Company Access Point or Company’s use or operation thereof is in material violation of this Agreement or otherwise exposes Separo or any Separo systems, including without limitation the Separo Platform, to liability, disruption or security risks (“Disruption”), Separo shall notify Company of such Disruptions and request that Company remedy such Disruptions. Separo shall have the right to immediately suspend access of all or any portion of the Company Access Point causing such Disruptions (and only to the extent necessary to alleviate such Disruptions) or require Company to do so. Company shall reasonably cooperate with Separo to remedy any such Disruptions.
Separo owns all right, title and interest in and to the Separo Method, Separo Materials and Separo Platform (the “Separo IP”), and this Agreement does not grant any right, title or interest in any intellectual property owned by Separo. Separo's rights apply to the API and all output and executables of the API, excluding only the Print Output.
You agree to pay Separo all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site or through the Services (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Separo the right to charge the credit card or debit the bank account provided to Separo for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to Separo (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. SEPARO MAY CHANGE ANY PORTION OF THE FEES BY POSTING THE CHANGES TO THE SITE OR OTHERWISE NOTIFYING COMPANY THROUGH THE SERVICES OF THE CHANGE, SUCH CHANGES TO TAKE EFFECT AS SET FORTH THEREIN, BUT NOT EARLIER THAN THIRTY (30) DAYS FOLLOWING SUCH NOTICE. COMPANY AGREES AND ACKNOWLEDGES THAT CONTINUED USE OF PAID SERVICES AFTER SUCH PERIOD SHALL BE SUBJECT TO ANY SUCH UPDATED FEES. If Separo requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
The Agreement will commence upon any access to the Site or Service, and for certain paid Services as set forth in an Order, and shall continue until terminated earlier pursuant to the terms of this Agreement or the applicable Order. Company may terminate its use of the Site or Services at any time. Either party may terminate the Agreement for a material breach which remains uncured within two (2) business days after receiving written notice of the breach. Separo may terminate the Agreement with respect to any unpaid Services or access to the Site for any reason or for no reason with or without notice at any time. Separo may terminate paid Services or access to the Site as set forth in the Order or on the Site where such Services are accessed, and if no terms are specified, upon thirty (30) prior days’ notice to Company. As soon as practicable following any termination or expiration of this Agreement (and in no event more than ten (10) business days thereafter), Company agrees to uninstall and delete from its computer systems and servers all copies of the Separo Materials and to destroy or return to Separo all hard copies thereof, including any analyses, test results or other data created in connection with or while using the Separo Materials or Separo Platform. Any obligations which expressly are to continue after termination, cancellation or expiration of the Agreement shall survive and remain in effect. All licenses hereunder shall immediately terminate upon expiration or termination of this Agreement.
Company shall ensure that it possesses all permissions, rights and licenses to the Company Access Point and any use of the Print Output. Company represents and warrants that all information provided by Company to Represent during the registration process is true and accurate.
Each party represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (iv) such party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
THE Separo Materials AND SEPARO PLATFORM ARE PROVIDED “AS IS”, AND Separo MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Separo MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE Separo Materials OR SEPARO PLATFORM ARE FREE OF ERRORS, BUGS OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE COMPLETE OR OTHERWISE VALID.
COMPANY WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE BY COMPANY OF SEPARO MATERIALS OR SEPARO PLATFORM.
IN NO EVENT SHALL SEPARO BE LIABLE TO COMPANY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE API, THE Separo Materials OR THE SEPARO PLATFORM. THE MAXIMUM AGGREGATE LIABILITY OF Separo FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED ONE THOUSAND DOLLARS (US$1000.00). THE FOREGOING LIMITATION SHALL APPLY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
To the maximum extent permitted by applicable law, Company agrees to hold harmless and indemnify Separo and its affiliates, employees, officers and agents from and against any third party claim arising from or in any way related to a material breach of this Agreement by Company, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and reasonable attorneys' fees. Separo shall use good faith efforts to provide Company with written notice of any such claim, suit or action.
“Confidential Information” shall mean this Agreement, the configuration and operation of the Separo Materials or Separo Platform, and all information Separo discloses to Company, except for information which Company can demonstrate: (a) is previously rightfully known to it without restriction on disclosure; (b) is or becomes, from no act or failure to act on the part of Company, generally known in the relevant industry or public domain; (c) is disclosed to Company by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by Company without access to the Confidential Information. Company shall at all times, both during and after the term hereof, keep in confidence all such Confidential Information using a standard of care it uses with its own information of this nature, but in no event less than reasonable care. Company shall not disclose any information to third parties and shall not use any Confidential Information other than in the course of its permitted activities hereunder.
Company agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export or re-export the Separo Materials or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals.
Separo may use Company’s name in a customer reference list, as part of a general public disclosure of Separo's customers and the products licensed by them, or to identify Separo's customers and the products licensed by them to prospective customers.
The parties to the Agreement are independent contractors. Neither party is an agent, representative or partner of the other party. This Agreement will be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns, provided that Company shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of Separo. This Agreement shall be construed and interpreted in accordance with the internal laws of California, U.S.A., without giving effect to its choice of law principles. Company agrees that any breach of this Agreement will cause Separo substantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, Separo shall have the right to specific performance and other injunctive and equitable relief. SEPARO SHALL HAVE THE RIGHT TO DELIVER NOTICES VIA POSTING ON THE SITE OR SERVICES, OR TO THE LOCATION OR EMAIL SPECIFIED IN COMPANY’S ORDER OR REGISTRATION INFORMATION AND SUCH NOTICE SHALL BE DEEMED RECEIVED WITHIN TWENTY-FOUR HOURS OF POSTING OR TRANSMISSION. UNLESS OTHERWISE SPECIFIED, ALL NOTICES UNDER THIS AGREEMENT TO SEPARO WILL BE IN WRITING TO SEPARO’S ADDRESS BELOW, AND WILL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN RECEIVED, IF PERSONALLY DELIVERED OR SENT BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED; OR THE DAY AFTER IT IS SENT, IF SENT FOR NEXT DAY DELIVERY BY RECOGNIZED OVERNIGHT DELIVERY SERVICE. ALL NOTICES TO SEPARO SHALL BE COPIED TO LEGAL@SEPARO.IO.
Represent Holdings, LLC
1680 Vine St., #400
Los Angeles, CA 90028