Effective as of August 31, 2020
MOBILE END USER LICENSE AGREEMENT
This Web End User License Agreement (the “Agreement” “EULA,” “Mobile License,” “Agreement” or “License Agreement”) is a legal agreement between you and Mucca Typo LLC (“muccaTypo”) and becomes a binding contract between you and muccaTypo. This Agreement governs the terms of use for certain font software that is transmitted to you by muccaTypo, collectively with any media, source code, images, electronic documentation, updates, digital or print representations, add-ons, artwork, web services and any other material that may be transmitted to you in connection with the font software now or in the future (collectively, “Font Software”). This Agreement becomes effective when you install the Font Software. If you do not wish to enter into this Agreement, do not install the Font Software.
1. License
a. Upon your payment of the Mobile Font Software license fee, muccaTypo will grant you a perpetual, worldwide, non-exclusive and nonassignable license to: (i) Embed the Font Software into an unlimited number of copies and subsequent versions of the application(s) (“App” or “Apps”); (ii) Port the App to any other platform or console (iOS, Windows, Android, Linux, Playstation, Xbox, etc.); and (iii) Subset or convert the Font Software format to improve the Font Software’s performance in the App.
b. Enabling use of the Mobile Font Software is subject to a license fee in addition to any fee paid for Font Software and the following restrictions: (i) The number of Monthly Active Users (“MAU”) of the App cannot exceed the number specified in the Invoice. MAU is the number of unique users that have logged in or otherwise used the App in the last 30 days. If the App has no way of monitoring use, you may use “total downloads” as a metric instead; (ii) You may not redistribute the Font Software with the App’s source code; (iii) You may not install the Font Software in the operating system the App runs on; (iv) You may not embed the Font Software in an App that enables an end user to create custom typesetting with the Font Software (e.g. Photoshop Express for iOS, etc.); (v) You may embed the Font Software in reports that the App saves or exports, provided that the reports are not sold for profit; and (vi) You may only embed the Font Software into Apps that you own or control.
c. muccaTypo may distribute web fonts by two methods, (i) by purchase of a license, downloading the Mobile Font Software and serving to the viewers of the domain name(s) licensed under this EULA or (ii) by purchasing a license to use the Mobile Font Software and having the mobile fonts served by muccaTypo or its designated agent, representative or contractor to the developers of the App(s) authorized under this EULA. By downloading, installing the Font Software and/or using the Font Software service you agree to be bound by this EULA and you acknowledge that all use of the Font Software supplied to you by muccaTypo is governed by this EULA and that all uses of the Font Software inure to the benefit of muccaTypo and/or the respective owners.
d. You may temporarily provide the Font Software to a third party aiding in development or design for the App who is working on behalf of you. The third party must: (i) Agree in writing to use the Font Software exclusively for your work, according to the terms of this EULA and (ii) Retain no copies of the Font Software upon completion of the work.
e. Upon purchasing a Mobile License, you shall disclose to muccaTypo the intended App(s) where the Font Software will be utilized. You will not be entitled to a reduction or refund of the Mobile License fee if you reduce MAU. muccaTypo reserves the right to charge an additional Mobile License fee for each App that uses the Font Software without notification to muccaTypo.
f. You shall make a reasonable attempt to prevent the use of any process that allows hot-linking, re-serving or re-directing access to and/or use of the Font Software by unlicensed parties. You agree to exercise commercially reasonable efforts to ensure that the Font Software is retained with the other assets associated with the licensed Apps. For the purposes of clarity, the use of third party font hosting services is strictly prohibited and the Font Software should be stored and served from the same devices and location as the other software and assets associated with the licensed Apps. You are prohibited from using mobile fonts to allow for third parties’ editable use of the Font Software, such as templates or for use in the creation of customizable designs or products.
g. muccaTypo is not responsible for any display problems which may occur as a result of your use of third-party software to modify the Font Software as permitted under this EULA.
h. Any distribution or use of the Font Software not specifically covered in subsections ‘a’ through ‘g’ above will require an addendum to this Mobile License (if by you) or a separate license (if by someone else). For avoidance of doubt, the following uses of the Font Software are not included within the Mobile License and are prohibited:
Adding or modifying Font Software characters; Embedding the Font Software in documents or web content for distribution to others; Using the Font Software on a workgroup or internet server or otherwise reselling or leasing the Font Software; Using the Font Software’s character set as an integral part of the surface or user interface of any kind of commercial product or merchandise (as distinguished from product packaging), including but not limited to apparel, home goods, firmware, software, hardware, OEM, or ISV.
i. You are prohibited from converting, porting, decompiling, reverse engineering, disassembling, adapting, modifying, in whole or in part, or otherwise attempting to discover the source code of the Font Software without first obtaining permission from muccaTypo. In the event that permission is given to you, any and all modifications and additions shall become and shall remain the sole and exclusive property of muccaTypo and you may not sell, lend or otherwise transmit any modifications or additions to the Font Software to any third party. Other jurisdictions may provide for additional rights, and if applicable, you may reverse engineer or decompile the Font Software only to the extent that sufficient information is not available for the purpose of creating an interoperable software program (but only for such purpose and only to the extent that sufficient information is not provided by muccaTypo upon written request). All trademarks shall be used in accordance with accepted trademark practice, including identification of the trademark owner’s name. Use of the trademarks associated with the Font Software inures solely to the benefit of muccaTypo.
j. You are prohibited from distributing, transmitting, leasing, renting, loaning, selling, or sub-licensing, in whole or in part, the Font Software to any third party not authorized under this Mobile License. You shall implement reasonable security precautions, protocols, and protective measures to prevent the unauthorized use, distribution, duplication, transmission, or dissemination of the Font Software.
k. For so long as you have the Font Software displayed on any website domain (including sub-domains and sub-directories thereof), you shall keep true and accurate records of your use of the Font Software (including but not limited to identifying information of the website domains(s) on which the Font Software is displayed and the end user(s) using the Font Software. Upon muccaTypo’s request, you will provide within thirty (30) days’ of the request a complete accounting of the website domain(s) (including sub-domains and sub-directories thereof) upon which you have displayed the Font Software, certified by an officer of the company. In addition, upon reasonable notice, muccaTypo may, either through its own employees or through a third party at muccaTypo’s discretion, audit your records to verify compliance with the terms of the Mobile License. If the audit reveals any use in violation of this License, in addition to muccaTypo’s other remedies, you will be required to reimburse muccaTypo for the costs of conducting the audit. Your failure to comply with these accounting and audit provisions is grounds for muccaTypo’s termination of this Mobile License by written notice to you. The parties acknowledge and agree that any information obtained through an audit performed under this Section 1(i) will be deemed Confidential Information, as defined below.
l. This Mobile License is subject to termination if you violate any of the terms and conditions stated herein. muccaTypo will give you written notice of the violation, and you shall have 15 days after the date of the notice to cure the violation. If the violation is not cured within that period, this Mobile License may thereupon be terminated by muccaTypo by written notice to you. No fees shall be refundable to you upon termination. Upon termination of this EULA, you must destroy the Font Software and all copies thereof in your possession, in part or in whole, and in all forms of media. Upon destruction of the Font Software, you shall promptly submit a declaration signed by an officer of the company that attests to the destruction of the Font Software in conformance with this EULA. The termination of the EULA is without prejudice to muccaTypo’s entitlement to damages for a violation of the EULA.
m. All rights not expressly granted by muccaTypo to you are hereby reserved by muccaTypo. Without limiting the generality of the foregoing, muccaTypo retains all right, title, and interest, including without limitation copyright and patent rights, of whatsoever nature (including all intellectual property rights) in the Font Software and in all legally protectable elements and derivative works of the Font Software, regardless of by whom paid for or developed. You acknowledge and agree that the design of the Font Software is the exclusive property of muccaTypo and that the unauthorized use of the design of the Font Software, and the fonts subsisting therein, would be an infringement of muccaTypo’s exclusive rights that would cause significant monetary harm. muccaTypo’s rights and remedies in the event of an infringement shall be cumulative in nature.
2. Disclaimer
a. muccaTypo warrants that the Font Software will perform substantially in accordance with its documentation for ninety (90) days following delivery of the Font Software. To make a warranty claim, you must contact muccaTypo with sufficient information regarding your purchase of the Font Software to permit the confirmation of the effective date of this MobileLicense. Except as stated above and to the extent permitted by law, muccaTypo hereby expressly disclaims all warranties, express and implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. muccatypo does not warrant that the operation of the font software will be uninterrupted or error-free, or that the font software is without defects. Under no circumstances shall muccatypo be liable to you or any other party, whether in contract or tort (including negligence) or otherwise, for any special, consequential, or incidental damages, including lost profits, savings or business interruption as a result of the use of the Font Software even if notified in advance of such possibility.
b. You hereby agree that your entire, exclusive, and cumulative liability and remedy shall be limited to the purchase price of this Font Software License. Under no circumstances shall muccaTypo’s liability to you exceed a refund of the cost of the Mobile License.
c. If muccaTypo finds that the Font Software delivered to you is found to be in breach of the warranty above, or is found to otherwise contain a flaw that can be reproduced by muccaTypo in its review of the Font Software, muccaTypo will replace it with the same Font Software, or an updated/upgraded version of the same Font Software if necessary. muccaTypo cannot give refunds, and an exchange will only be made in the case of a defect that cannot be corrected.
3. General
a. You may not assign your rights, duties, or obligations under this EULA or the Mobile License to any other person or entity, in whole or in part, without the prior express written consent of muccaTypo.
b. No waiver of any provision of this EULA or of any right or remedy hereunder will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, course of dealing with respect to, or partial exercise of any right or remedy hereunder will constitute a waiver or relinquishment of any other right or remedy, or future exercise thereof.
c. All notices must be in writing and will be deemed to be delivered when received by electronic mail; by certified mail, postage prepaid, return receipt requested; or by a nationally known overnight mailing service, directed to the parties at the respective addresses given above or to such other address as either party may designate to the other party by notice given in conformance with this subsection.
d. This EULA shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of conflicts-of-law principles. Any dispute relating to this Agreement will be decided solely in the courts located in the State and City of New York, and the parties irrevocably submit to the personal jurisdiction of said courts for that purpose. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this agreement. In the event of your violation of any of the provisions of this EULA, muccaTypo will be entitled to an award of its reasonable fees (including but not limited to reasonable attorney’s fees) to investigate and address the violation, and in that regard reasonableness will be based on the legal services reasonably required to enforce the Mobile License and not based upon the dollar amount, if any, of the award against you.
e. Your installation of the Font Software constitutes your acceptance of all of the provisions contained in this EULA, which constitutes the complete and binding agreement between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
f. Each party (1) shall protect all Confidential Information of the other party from improper disclosure, (2) shall only use Confidential Information as necessary to perform under this EULA, and (3) shall limit use and disclosure of Confidential Information to its own employees and subcontractors bound to maintain the confidentiality of the Confidential Information. “Confidential Information” is information that pertains to the Font Software, as well as the following: information that in itself or when combined with other information identifies a natural person; information regarding the staff, businesses, technologies, ideas and customers of each party; and any other information which is valuable to a party or information that is marked or verbally indicated as confidential. Confidential Information does not include information that is public knowledge, is in the recipient’s possession before receipt from the other party or is independently developed by the recipient without reference to Confidential Information.
g. The invalidity or unenforceability of any provision of this EULA shall not affect the validity or enforceability of any other provision of this EULA, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.