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Terms and Conditions
ACCESS TERMS AND CONDITIONS
PLEASE READ THE ACCESS TERMS AND CONDITIONS ("AGREEMENT") CAREFULLY.  ANY PERSON (INDIVIDUAL AND/OR ENTITY) WHO WISHES TO USE THE APPLICATION AND/OR HAVE ACCESS THERETO (AS THOSE TERMS ARE DEFINED BELOW) MUST AGREE TO THIS AGREEMENT.  THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND ELECTRONICS FOR IMAGING, INC. AND ITS AFFILIATES (COLLETIVELY, "EFI") REGARDING THE APPLICATION AND/OR ACCESS THERETO. 
BY USING PASSWORDS ALLOWING ACCESS TO THE APPLICATION ("PASSWORDS"), OR BY OTHERWISE ACCESSING OR USING THE APPLICATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE PASSWORDS AND DO NOT OTHERWISE ACCESS OR USE THE APPLICATION AND CONTACT THE PERSON (INDIVIDUAL AND/OR ENTITY) THAT PROVIDED YOU WITH THE PASSWORD AND/OR ACCESS TO THE APPLICATION. 

1.	DEFINITIONS

	1.1	"Access" shall mean the connection to and use of the Application by You and/or Your Customers via an Internet web browser under the terms and conditions of this Agreement.
	1.2	"Application" or "DSF" shall mean EFI’s proprietary hosted Digital Store Front ASP system and related services that may be created with a unique customer facing branding and is connected to a Site Location, as updated from time to time.  
	1.3	"Customer" shall mean an entity or person that rents, leases or otherwise receives Access through Your regular distribution channels solely in accordance with the limitations, terms and conditions herein.  
	1.4	"Site Location" means the printing facility owned and/or operated by You.

2.	LICENSE; ACCESS TO THE APPLICATION.

	2.1	Rights Granted.  Subject to the terms and conditions of this Agreement, EFI grants to You during the term of this Agreement a non-exclusive, non-transferable limited license (without a right of sublicense) to Access the Application in accordance with the documentation solely for Your and Your Customers’ own internal business use and operations.  You may not rent, lease, re-license or otherwise provide access to the Application to any third party other than the Customers identified in writing to EFI prior to implementation.  EFI reserves the right to refuse Access to any Customer in EFI’s sole discretion.  No copies of the Application or any EFI content made available therein and/or documentation may be made without EFI’s prior written consent. 

	2.2	General; Access.  EFI will host and maintain the Application for You pursuant to the terms of this Agreement.   DSF will have a distinct URL and will be formatted using EFI’s standard formatting unless otherwise agreed to in writing.  You may obtain additional services or formatting of DSF from EFI to further customize or configure DSF at EFI’s then-current time and material rates for such services, plus actual costs and expenses.  Following Your acceptance of this Agreement, EFI shall provide a password or passwords to You allowing You and Your Customers Access to the Application.  EFI shall also provide You with user guides and other information ("Documentation") to assist You and Your Customers in using the Application.  All data generated by and through Your and Your Customers’ Access shall reside on EFI’s servers and EFI shall have the right to use such information for the purposes of this Agreement and in aggregate, non-personally identifiable form for any reason.  

	2.3	Data Entry.  EFI shall provide You and Your Customers with the means to enter (or have entered) any necessary data into the Application.  Responsibility for ensuring that the data is timely entered into the Application and is accurate and reflects Your requirements lies solely with You.  You, on behalf of yourself and Your Customers, shall indemnify and hold harmless EFI from and against any liability, damages, costs, and harms of any nature arising directly or indirectly as a result of, or caused directly or indirectly by, (i) use by You or Your Customers of the Application, or (ii) any data or content included in or used in conjunction with the Application, or (iii) violation by You or Your Customers of the terms of this Agreement.

	2.4	Use of DSF at Site Location.  Notwithstanding anything to the contrary in this Agreement, You shall ensure that Your Customers only use DSF for activity which occurs at the Site Location and that Your Customers who access DSF must be located at or engaging in business activity which will occur or is occurring at the authorized Site Location.  Without limiting the generality of the foregoing, in the event that You operate more than one printing facility, You shall ensure that Your Customers do not use DSF to engage in business activities at any printing facility other than the authorized Site Location. 

	2.5	Relationships With Customers and Third Parties.  The operation of DSF, and participation by ASP Customers therein, shall create no contract or other obligation between EFI and Your Customers.  You shall have sole and absolute discretion whether to enter into agreements with Your Customers using DSF pursuant to the transaction rules and conditions updated on DSF from time to time.  EFI shall not be a party to any agreement for printing services between You and any of Your Customers or vendors.  EFI cannot and does not warrant or guarantee, and shall not be liable in any way for, the performance of any customer, vendor, or third party.  Moreover, EFI shall have no liability relating to, arising out of, or in connection with any dispute between You and any of Your Customers, vendors or other third parties accessing DSF.  Any such dispute shall be solely between You and such other party and shall not relieve You of any of its obligations to EFI hereunder.

3.	FEES

	3.1	Access Fee.  You shall pay EFI, or EFI’s authorized reseller, an annual fee, plus any additional Set-Up Fees and other costs for Access to the Application, in accordance with EFI’s then-current fee schedule.  Each additional end customer branding incurs an additional fee and each additional Site Location connected to the site incurs an additional fee.  In addition, if You require the data in the Application to be segregated into a separate database for either (i) a unique customer(s) or (ii) a unique Site Location(s), You must purchase an additional subscription to another copy of the Application.  Access Fees are non-refundable.  EFI’s fee schedule is subject to change at EFI’s sole discretion without notice.

	3.2	Expenses. You shall reimburse EFI for all pre-approved reasonable out-of-pocket expenses (including travel, lodging and meals) incurred by EFI in connection with all implementation or consulting on-site sessions attended by EFI’s implementation and consulting services professionals.

4.	OWNERSHIP.

	4.1	Ownership. EFI shall retain all right, title and interest in and to the Application and its source code, including any derivative works therefrom, regardless of which party created such derivative works.  Any and all ideas, concepts or other intellectual property rights related in any way to the techniques, knowledge or processes of the services and deliverables provided under this Agreement, whether or not developed for You, are the exclusive property of EFI.  You and Your Customers shall obtain no ownership rights, express or implied, or any other rights other than those expressly set forth herein in the Application and/or Documentation.

	4.2	No Reverse Engineering.  You agree, on behalf of Yourself and Your Customers, not to use any reverse compilation, decompilation or disassembly techniques or similar methods to determine any design structure, concepts and construction method of the Application, or replicate the functionality of the Application for any purpose.

	4.3	Password Security.  You shall:  (1) ensure that only authorized individuals shall have access to any passwords provided by EFI for use by You and Your Customers in connection with the Application; (2) not disclose such passwords to any unauthorized individual; and (3) be solely responsible for assigning roles and authority levels with respect to You and Your Customers’ Access to the Application, and shall be solely responsible for the conduct of individuals to which it provides Access to the Application.  You acknowledge and agree that You are solely responsible for strictly maintaining the confidentiality and integrity of such passwords and authority levels and You shall indemnify and hold harmless EFI from and against any liability, damages or costs arising from Your failure to comply with this Section.    You shall notify EFI immediately in writing if the security or integrity of a password or authority level has been compromised.

	4.4	Compliance Audit.  EFI may, at its expense, perform an audit of You and Your Customers’ use of the Application and/or Documentation.  Any such audit shall be made upon reasonable notice and conducted during regular business hours at Your facilities.  If the audit reveals that You have underpaid fees to EFI or are using the Application beyond the license restrictions and/or any terms of this Agreement, You will be invoiced for any such underpaid fees and will pay EFI’s reasonable expenses associated with such audit.  These remedies shall be in addition to, and shall not limit EFI’s ability to terminate this contract based on material breach or pursue damages or other remedies available under law and equity.

	4.5	Dangerous Applications.  The Application is not intended for use in any nuclear, aviation, mass transit, medical or life support application or in any other inherently dangerous application.  You are responsible for taking all appropriate measures to ensure the safe use of the Application if used for such purposes and EFI shall not be liable for any claims or damages arising from such use.

	4.6	Compliance With Laws.  You and Your Customers shall use the Application in compliance with all applicable laws, statutes, rules and regulations.  Upon written notice to You, EFI may modify or suspend You and Your Customers’ Access to the Application as necessary to comply with any law or regulation.

	4.7	Confidentiality.  The Application and its source code, including any derivative works therefrom, the Access thereto, Documentation, and Passwords are confidential, proprietary information of EFI and You may not distribute or disclose this information except as expressly provided in this Agreement.

	4.8	Notices.  You and Your Customers may not remove, alter or obscure any patent, trademark, copyright or other notice or marking in or on the Application.

	4.9	Microsoft Software.  Access to the Application may be enabled by materials provided by Microsoft Licensing, GP.   Microsoft provides no support for the Application or Access to the Application.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT DISCLAIMS ANY AND ALL WARRANTIES AND ANY LIABILITY FOR ANY DAMAGES WHATSOEVER ARISING FROM THE APPLICATION, THE ACCESS THERETO, AND/OR THE SERVICES ARE PROVIDED HEREIN.

5.	TRAINING AND SUPPORT.

	5.1	Training.  You shall make designated employees available to be trained on the basic functions and operation of the Application. 

	5.2	Customer Support.  EFI will provide a staffed customer service call center from 8:00 a.m. to 8:00 p.m. EST, Monday through Friday except for holidays recognized by EFI, and 7 day/24 hour pager response at all other times in order to resolve customer questions and problems relating to DSF. 

	5.3	Scheduled  Maintenance.  EFI will use commercially reasonable efforts to perform any scheduled downtime outside of normal business hours.  EFI shall notify You of all scheduled downtimes at least forty-eight (48) hours in advance.

	5.4	Outages.  You, on behalf of Yourself and Your ASP Customers, acknowledge and agree that communications via the Internet are subject to unexpected outages due to equipment failure that can occur at various locations, most of which are not under EFI’s control.  You agree to hold EFI blameless for outages that are not EFI’s fault or could not have been reasonably foreseen by EFI.  EFI agrees to exert the highest standard of diligent efforts in restoring outages, regardless of fault, whenever they occur. 

6.	DISCLAIMER OF WARRANTIES AND LIMITATIONS

	6.1	DISCLAIMER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION, THE ACCESS THERETO, AND/OR THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTIES OF ANY KIND. EFI MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY RELATING TO THE APPLICATION, ACCESS THERETO, OR SERVICES WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION, AND IT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING THOSE OF SECURITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.  THERE IS NO WARRANTY OR REPRESENTATION THAT THE OPERATION OF THE APPLICATION OR ACCESS THERETO WILL BE UNINTERRUPTED, FAULT-TOLERANT, SECURE OR ERROR-FREE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE LIABILITY OF EFI, AND THE SOLE REMEDY, RELATING TO ANY AND ALL APPLICABLE WARRANTIES SHALL BE, AT EFI’S OPTION, TO REPAIR THE DEFECTIVE APPLICATION, REPLACE THE DEFECTIVE APPLICATION, RE-PERFORM THE DEFECTIVE SERVICES, OR PROVIDE A REFUND FOR THE PRICE PAID HEREUNDER FOR THE DEFECTIVE APPLICATION, ACCESS THERETO, OR SERVICES.  EXCEPT AS PROVIDED IN THIS SECTION, THERE SHALL BE NO REFUNDS, RETURNS, EXCHANGES OR REPLACEMENTS WITH RESPECT TO ANY PRODUCTS OR SERVICES.	

	6.2	LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT THE ENTIRE LIABILITY OF EFI AND ITS SUPPLIERS FOR ALL CLAIMS RELATED TO THE APPLICATION, THE ACCESS THERETO, THE SERVICES, AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, UNDER STATUTE, OR OTHERWISE), SHALL BE LIMITED TO THE AMOUNT PAID BY YOU, IF ANY, FOR THE ACCESS. YOU AGREE THAT SUCH AMOUNT IS SUFFICIENT TO SATISFY THE ESSENTIAL PURPOSE OF THIS AGREEMENT AND THAT SUCH A LIABILITY IS A FAIR AND REASONABLE ESTIMATE OF ANY LOSS AND DAMAGE LIKELY TO BE SUFFERED IN THE EVENT OF ANY WRONGFUL ACT OR OMISSION BY EFI AND/OR ITS SUPPLIERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EFI AND ITS SUPPLIERS BE LIABLE FOR COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, PRODUCTS OR SERVICES, LOST PROFITS OR DATA, THIRD PARTY CLAIMS, OR ANY SPECIAL INDIRECT, RELIANCE, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, RELATED TO ANY SOFTWARE, PRODUCT, SERVICES, THE APPLICATION, THE ACCESS THERETO, AND/ OR THIS AGREEMENT. THIS LIMITATION SHALL APPLY EVEN IF EFI AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE PRICE OF THE ACCESS REFLECTS THIS ALLOCATION OF RISK. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS FORM AN ESSENTIAL ELEMENT OF THIS AGREEMENT, WITHOUT WHICH EFI WOULD NOT HAVE PROVIDED THE ACCESS TO YOU.

7.	TERMINATION
	Unauthorized use, copying, or disclosure of the Passwords, the Application and/or the Access thereto, or any breach of this Agreement will result in automatic termination of this Agreement and will make available to EFI other legal remedies. In the event of termination, you must destroy all Passwords and cease use of the Application and Access thereto. All provisions of this Agreement relating to confidentiality of the Application, Passwords, and Access thereto, disclaimers of warranties, limitation of liability, remedies, damages, governing law, jurisdiction, venue, and EFI’s intellectual property rights shall survive any termination of this license.

8.	MISCELLANEOUS

	8.1	Independent Relationship.  The relationship between You and EFI is independent and only that of a vendor and vendee, and/or independent contractors.  Nothing contained in this Agreement shall create any agency, employment, partnership, joint venture or similar relationship between EFI and You for any purpose.  No party shall have any right whatsoever to incur any liabilities or obligations or to make any warranties on behalf of or binding upon any other party.

	8.2	Force Majeure.  Except for payment of monies, no party shall be liable for its failure to perform any obligations on account of strikes, shortages, failure or acts of suppliers, riots, insurrection, fires, flood, storm, explosions, acts of God, war, military operations, acts of terrorism whether actual or threatened, acts of a public enemy, epidemics, quarantines, governmental action, labor conditions, earthquakes, material shortages or any cause which is similar to those enumerated or beyond the reasonable control of such party.

	8.3	Nonassignability and Binding Effect.  The parties shall not assign or transfer this Agreement, except that EFI may assign and transfer its rights and obligations under this Agreement to an affiliate, parent or subsidiary, and may assign all or part of the work to be performed under this Agreement as services to a qualified party.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.

	8.4	Notices.  Any notice to be given to EFI under this Agreement shall be delivered to its General Counsel (i) by registered or certified mail, (ii) by overnight courier, (iii) by fax, or (iv) by first class mail. Notice so given shall be deemed effective when first sent.  

	8.5	Governing Law; Jurisdiction; Venue.  This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sales of Goods; rather, this Agreement shall be governed by and construed under the laws of the State of California without regard to conflicts of laws principles. All disputes related to this Agreement, the Application or Access thereto, shall be brought in the state or federal courts of California, and the parties consent to the exclusive personal and subject matter jurisdiction and venue of these courts.

	8.6	Compliance With Law.  You shall provide, pay for, be responsible for, and keep in good standing all licenses, exemptions, permits or other applicable approvals pertaining to Your activities. You shall comply with all applicable laws and regulations, including without limitation federal, state, local and foreign laws and regulations, pertaining to Your use of the Application and/or Access thereto, performance of services, and Your obligations and activities under this Agreement.

	8.7 	Severability.  If any provision of this Agreement is found to be invalid, unlawful or unenforceable by a court of competent jurisdiction, such invalid term shall be severed from the remaining portion of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.

	8.8	Entire Agreement. This Agreement consists of the terms and conditions herein and constitutes the entire Agreement between the parties with respect to the subject matter hereof.  This Agreement supersedes all prior agreements, discussions and understandings, whether oral or written, between the parties with respect to the subject matter hereof.  This Agreement may be modified only by a written Amendment to this Agreement executed by duly authorized executives of all the parties.  Duly authorized executives of EFI Inc. are solely the Chief Financial Officer, Chief Executive Officer, President and General Counsel.

	8.9 	Language.  This Agreement is in English only, which shall be controlling in all respects. All communications and notices shall be in English.
I accept the terms in the license agreement.