This Final Draft Enterprise Site License Agreement (“Agreement”) is entered into by and between Final Draft, a Cast & Crew Company, with offices at 2300 W. Empire Ave, 5th floor, Burbank, CA 91504 (“FD”) and the Licensee indicated on the Final Draft Site License Information Sheet (“Licensee”).
Notwithstanding anything to the contrary, FD reserves the right in its sole discretion to update the terms of this Agreement from time to time without notice to Licensee. Licensee can review the most current version of this Agreement at any time at: finaldraft.com/legal.
Under this Agreement, the version of Final Draft specified on an Order (as defined below), and upgrades and updates thereto in FD’s sole discretion (the “Software”) is licensed, not sold, to Licensee for use only under the terms and conditions of this Agreement. If Licensee does not agree to the terms of this Agreement, Licensee must not install, copy, download, access or use the Software, and Licensee must promptly notify FD in writing.
The “Term” of this Agreement shall run concurrent with the License Term indicated on any active customer order, information sheet, sales quote or invoice under this Agreement (each, an “Order”), unless terminated earlier in accordance with the terms herein. The License Term of any Order shall automatically renew for subsequent periods of equal length as the original License Term unless either FD or Licensee sends written notice to the other of its intent not to renew at least 15 days prior to expiration of the then-current License Term. FD may change pricing, quantity or other terms for a renewal Order by sending a written Order document to Licensee at least 30 days prior to expiration of the then-current License Term. Upon renewal of an Order, each of FD and Licensee agrees and shall agree that the then-current version of this Agreement available at Enterprise License shall govern such Order.
FD grants Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to download and install the Software on computers that are (a) controlled and (b) owned or leased by Licensee, for use by Licensee’s employees and Licensee’s individual independent 1099 contractors solely for the purpose of creating content on behalf of Licensee. Except for the limited license explicitly granted above, Final Draft retains all right, title and interest (including all intellectual property rights) in the Software and user documentation, including the copies of the Software on Licensee’s devices.
Licensee is required to pay the Cost as noted on the Final Draft Site License Information Sheet.
In addition to any restrictions stated in the respective EULA, Licensee may not (itself or through a third party):
- Use the Software, documentation and/or the non-public information it gains from using the Software and/or the documentation to create similar software or services;
- Modify, alter, tamper with, repair or otherwise create derivative works of the Software; reverse engineer, disassemble, decompile, discover or recreate the Software or any part thereof (including source code), except and only to the extent that the applicable law expressly requires FD to permit Licensee to do so;
- Sell, lend, rent, lease, sublicense, assign or otherwise transfer any of the rights granted to Licensee with respect to the Software to any third party;
- Provide the Software to any third party or allow any third party to access the Software; or
- Remove, obscure or alter any proprietary rights notice appearing on or within the Software or the any documentation.
Licensee will deactivate the Software on computers where the Software is no longer being used, in accordance to the deactivation instructions provided by FD.
- Audit Rights
FD reserves the right to audit Licensee’s compliance with this Agreement. Licensee grants FD the right to access its computers and other devices to verify such compliance. Any audit that includes Licensee’s physical premises will be made on reasonable notice.
FD may use Licensee’s feedback and suggestions for any purpose without attribution, accounting or compensation to Licensee.
Licensee will indemnify, defend, and hold harmless FD, its affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, representatives and affiliates of any of the foregoing (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (“Liabilities”) incurred by any Covered Entity in any way arising out of or relating to Licensee’s violation of this Agreement or its use of the Software. FD reserves the right, at Licensee’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, and in such case, Licensee agrees to cooperate with FD’s defense of such claim.
A party may terminate this Agreement immediately in the event that the other party is in material breach, has been given a notice of breach, and has failed to cure within 30 days of that notice. Immediately upon expiration or termination of this Agreement, Licensee will stop using the Software, deactivate the Software on all Licensee computers, and return or destroy any documentation in Licensee’s possession.
- NO WARRANTY
To the maximum extent permitted by applicable law, the Software and documentation is provided “AS IS” and “AS AVAILABLE”, with all faults and without warranty of any kind. The Covered Entities disclaim all warranties and representations whether express, implied or statutory, including implied warranties of fitness for a particular purpose, accuracy and non-infringement. The Covered Entities do not promise that the Software or documentation will meet Licensee’s requirements or be uninterrupted or error free, or that Licensee’s content will be available, secure or free from loss. The Covered Entities do not control, endorse or accept responsibility for any third party materials, products, services or offers accessible through the Software or through FD’s online properties. The Covered Entities make no representations or warranties about such third parties and Licensee engages with them at its own risk. FURTHERMORE, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS BY THE SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FD OR AN FD AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. Some jurisdictions do not allow exclusion of implied warranties or limitations on statutory rights, so this disclaimer may not apply to Licensee.
IN NO EVENT WILL THE COVERED ENTITIES BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR ANY OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) OR DIRECT LOSS OF BUSINESS, BUSINESS PROFITS OR REVENUE, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM (WHETHER UNDER CONTRACT, NEGLIGENCE OR OTHER TORT OR UNDER STATUTE OR OTHERWISE HOWSOEVER ARISING) AND EVEN IF ANY OF THE COVERED ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- LIMITATION OF LIABILITY
In no event shall the Covered Entities’ total aggregate liability for all damages arising under or related to the Software OR ANY ACCOMPANYING WRITTEN MATERIALS be greater than the TOTAL Cost noted on the Final Draft Site License Information Sheet. This limit applies even if a stated remedy fails of its essential purpose. Some jurisdictions do not allow limits on certain liabilities so this limitation may not apply to Licensee.
- LICENSEE’S RESPONSIBILITY TO PROTECT CONTENT
Licensee is solely responsible for maintaining appropriate security measures, including using additional encryption technology to protect its content from unauthorized access and disclosure, and for keeping backup copies of all content. FD has no responsibility or liability for deletion, corruption or any other damage to or loss of content. FD is not responsible for determining rights and ownership of any works created using the Software.
Licensee may not use, export or re-export the Services except as authorized by United States law, the laws of its jurisdiction and any other applicable laws or regulations. Without limiting this general prohibition, Licensee may not transfer the Software to anyone on the US government Lists of Parties of Concern (see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern). US Government Software that is downloaded or used for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with restricted rights. Use, duplication and disclosure by the U.S. Government are subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (or its successor provisions) or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19 (or its successor provisions), as applicable. The manufacturer is Final Draft, a Cast & Crew Company, 2300 W. Empire Ave, Burbank, CA 91504.
- Assignments and Material Expansions
Licensee may not assign this Agreement or any of its rights to the Software to any third party without FD’s prior written consent. The license granted herein does not extend to a material increase in employees and/or individual contactors that results from a merger, acquisition, change of control or other corporate changes or restructurings..
- Licensee Administrator
Licensee’s Licensee Administrator is indicated on the Final Draft Site License Information Sheet. FD will communicate with Licensee by emailing the address associated with the Licensee Administrator. Licensee is responsible for notifying FD in writing when a Licensee Administrator has been assigned and/or there is a change of contact information of a Licensee Administrator. Licensee can provide any notices to FD under this Agreement by sending an email to email@example.com.
- Dispute Resolution
The Agreement is governed by the laws of the State of California, excluding its choice of laws principles. Licensee must bring any claims under this Agreement within one year unless the law requires a longer timeframe. Claims not filed within those limits are permanently barred. Except for the optional arbitration described in this Sec. 17, the parties will resolve any disputes in the courts of Los Angeles County, California. Excluding claims for equitable relief, if the total amount in dispute is less than $10,000, either party may elect to resolve the claim through binding arbitration by initiating arbitration through an established provider that is agreed by the parties. The arbitration must be conducted under the following rules: (a) at the choice of the party seeking relief, the arbitration shall be conducted by telephone, online, or solely on written submissions; (b) no party or witness will make any personal appearance unless the parties agree otherwise; and (c) the winning party may have the arbitrator’s award entered as a judgment in any court of competent jurisdiction. Whether in court or in arbitration, the initiating party must bring all claims in its individual capacity and not as a plaintiff or class member in a class action or other similar proceeding. FD will be entitled to recover any legal fees and other costs associated with enforcing this Agreement.
- Enforceability/ Waiver
If any provision of this Agreement is legally unenforceable, that provision shall be limited to the least extent necessary to render it enforceable (or eliminated if it cannot be made enforceable) and the validity and enforceability of the remaining provisions will not be affected. No waiver will be effective unless it is in an explicit writing and signed by the waiving party.
- Intellectual Property Rights
The contents of the Software (e.g., the design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement) and the documentation are: Copyright © 2021 Final Draft, a Cast & Crew Company, and/or the proprietary property of FD’s suppliers, affiliates, or licensors. All Rights Reserved. Final Draft and the Final Draft logos are trademarks, service marks and/or registered trademarks of Final Draft, a Cast & Crew Company, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of FD. Other product and company names may be trade or service marks of their respective owners. FD may have patents, patent applications, trademarks, copyrights, or other intellectual property rights in the United States and/or other countries covering subject matter that is part of the Software. Except for the licenses to our intellectual property specifically provided for in this Agreement, FD does not give Licensee any other license to its intellectual property.
Last updated: April 12, 2021, S.P. / A.S. / S.M.