Monotype Software and Services Agreement (Subscription)

Monotype Software and Services Agreement (Subscription)

We recommend that you print this Software and Services License Agreement for further reference.  This Software and Services License Agreement (the “Agreement”) becomes a binding contract between you and Monotype when you click on the area marked “ACCEPT LICENSE AGREEMENT” or similar language. If you do not wish to be bound by the Agreement, you cannot Use or access the Software or Services. Please read this entire Agreement before you agree to be bound by its terms and conditions. The Agreement contains capitalized terms that are defined in Section 28.

This Agreement governs your right to use the following Software and Services that may be provided to you by Monotype depending on the plan elections made by you in your Account located at http://www.fonts.com/web-fonts:

• SkyFonts Client Software
• Web Font Software (including the Kit Web Font Software)
• Web Font Services
• Web Font Support
• Trial Font Software
• Mockup Font Software
• Desktop Font Software

You hereby agree to the following:

1. You are bound by the Agreement and you acknowledge that all Use of and access to the Software and Services supplied to you by Monotype is governed by the Agreement and you have no rights to the Software or Services other than as set forth in this Agreement.

2. Your right to Use or Access the Software or Services is subject to your payment of all applicable fees and the maintenance of your Account in good standing. You agree not to grant any third party access to your Account and keep all login information strictly confidential. You agree to keep your Account current and up to date and provide any and all information requested by Monotype in your Account in a timely manner.

3. All rights not expressly granted in the Agreement are reserved to Monotype.

SkyFonts Client Software

4. You agree that your Use of certain of the Font Software that may be licensed under this Agreement requires the installation of the SkyFonts Client Software on the Workstations in your Licensed Unit and further agree that either you will or Monotype may install the SkyFonts Client Software on the Workstations contained in your Licensed Unit.
   
   Web Font Software, Web Font Services and Web Font Support
5. If your Account indicates that you have subscribed to a Plan that allows you to access and Use Web Font Software, You are hereby granted, for the Term, a non-exclusive, non-assignable, non-transferable license to (a) publish Electronic Content which accesses the Web Font Software through the Web Font Services to render such Electronic Content on End-Users’ Output Devices, and (b) receive the Web Font Support. You may NOT Use or access, nor allow End-Users to Use or access, the Web Font Software (1) as part of or in conjunction with any Application, (2) for Editing, or (3) in a Commercial Product.

6. If Account indicates that you have subscribed to a Plan that allows you to self-host the Web Font Software, then you may elect to publish Electronic Content which accesses certain Web Font Software through a self-hosting option by downloading a self-hosting kit at http://www.fonts.com/web-fonts. If you download a self-hosting kit, as of the date of such download and subject to the terms of this Section 6:
   1. 6.1. You are granted for the Term, a non-exclusive, non-assignable, non-transferable license to (i) Use the Kit Web Font Software to generate Electronic Content, and (ii) install the Kit Web Font Software on a server and Use the Kit Web Font Software to, directly or through a third party web font hosting service with which you have a written agreement regarding the use and protection of the Kit Web Font Software, to generate Electronic Content.  To the extent technically achievable, you and any third party web font hosting service are responsible for protecting against access to the Kit Web Font Software, in its original form, in any unauthorized manner including referencing by any unauthorized Web Site or Electronic Content.  The failure to adequately protect the Kit Web Font Software used in the Electronic Content against Use by other electronic content shall be considered a breach of this Agreement.
   2. 6.2. You may authorize a third party (such as an advertising agency, independent or freelance designer or similar individual or organization) to access the self-hosting kit and Use the Kit Web Font Software on your behalf as set forth in (i) and (ii) above, provided that you provide such third party with a copy of this Agreement and such third party accepts the terms and conditions of this Agreement. In case of an authorization of a third party by you, you will be liable for any breach of the terms of this Agreement by any such third party and you shall be responsible for ensuring that such third party ceases accessing or Using such Web Font Software upon the completion of the creation of your Electronic Content. 
   3. 6.3. You must retain the page view tracking code on any Electronic Content that you self-host.
   4. 6.4. In the event this Agreement terminates for any reason, the Kit Web Font Software must be deleted from the server and all copies must be destroyed or returned to Monotype.  If you have authorized a third party to access and Use a self-hosting kit to generate Electronic Content on your behalf, agree and understand that you are responsible for (a) assuring that such third party destroys the self-hosting kit, (b) requiring the third party to certify to such destruction, and (c) providing evidence of such destruction to Monotype upon Monotype’s request. If you deploy font software in the self-hosting kit that is not Kit Web Font Software, you agree and understand that you are responsible for compliance with any license terms associated with such font software. Monotype shall have no obligation of any kind for any font software used in a self-hosting kit which is not Kit Web Font Software.

Trial Font Software

7. If Account indicates that you have subscribed to a Plan at that allows you to access and Use Trial Font Software, You may Use the Trial Font Software on the number of Workstations in your Licensed Unit in each case for the period of time stated in such Plan, solely for Evaluation Purposes.
   
   Mockup Font Software
8. If Account indicates that you have subscribed to a Plan that allows you to access and Use Mockup Font Software, You may Use the Mockup Font Software on the number of Workstations in your Licensed Unit solely to design Electronic Content for the limited period of time stated in such Plan. You shall have no right to exercise any of the rights set forth in Section 9 with respect to the Mockup Font Software. Additionally, if you are an agency (for example a web design agency, independent design contractor or a hosting provider) responsible for clients’ Electronic Content, you may allow your clients to access the Production Web Font Software through the Web Font Services to render such clients’ Electronic Content on End-Users’ Output Devices, provided that (1) you inform Monotype by email to [email protected] about any change in the client structure (including, but not limited to, the introduction of new clients or the termination of a client relationship); (2) all clients accept the terms and conditions of this Agreement; and (3) you accept liability for a breach of the terms of this Agreement by any client.
   
   Desktop Font Software
9. If Account indicates that you have subscribed to a Plan that allows you to access and Use Desktop Font Software (including but not limited to the Monotype Library Subscription Plan), You are hereby granted a non-exclusive, non-assignable, non-transferable license to access and Use the specific Desktop Font Software made available to you through your specific Plan (i) only for the Term, (ii) only in a Licensed Unit, (iii) only for your Personal or Internal Business Use, and (iv) in the case where a recipient of an electronic document is able to Use the Desktop Font Software for Editing, only if the recipient of such document is within your Licensed Unit. You may embed the Desktop Font Software only into an electronic document, solely for print and view, that (a) is not a Commercial Product, and (b) is distributed in a secure format that does not permit the extraction of the embedded Desktop Font Software. You may embed static graphic images into an electronic document, including a Commercial Product, (for example, a “gif”) with a representation of a typeface and typographic design or ornament created with the Desktop Font Software as long as such images are not used as a replacement for Desktop Font Software, (i.e., as long as the representations do not correspond to individual glyphs of the Desktop Font Software and may not be individually addressed by the document to render such designs and ornaments). If your Plan allows for Desktop Font Software sending, you may only do so as described in your Plan, and the recipient of the sent Desktop Font Software will be required to agree to the terms of use of, and install the SkyFonts Client Software and agree to an end user license agreement governing the term and the use of the sent Desktop Font Software.  The Desktop Font Software may not be installed or Used on an internal or external (i.e., internet accessed) server or in any other manner not expressly provided for under the terms of this Agreement.

API’s

10. You may access your Account data and settings directly or through the use of an API. The use of an API, either directly or through a third-party product, is bound by the terms of this Agreement as well as the terms contained in this Section 10 that are specific to your use of an API. YOU EXPRESSLY UNDERSTAND AND AGREE THAT MONOTYPE SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR ANY OTHER INTANGIBLE LOSSES (EVEN IF MONOTYPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OF THE API OR THIRD-PARTY PRODUCTS THAT ACCESS YOUR ACCOUNT DATA AND SETTINGS THROUGH YOUR USE OF THE API. If Monotype determines that you are abusing the use of the API, Monotype may suspend your Account, either temporarily or permanently. Monotype, in its sole discretion, will determine what constitutes abuse of your use of the API. Monotype may advise you prior to your account suspension of such impending suspension, however Monotype is not obligated in any way to do so. Monotype reserves the right to modify, discontinue or suspend your access to an API, or any part of an API, with or without notice, at any time.
    
    Limited Warranties; Limitation of Liability
11. Monotype warrants to you that the Desktop Font Software will perform substantially in accordance with its documentation for the ninety (90) day period following the date of your download of the Desktop Font Software from www.fonts.com/web-fonts. To make a warranty claim, you must, within the ninety (90) day warranty period, contact Monotype and provide sufficient information regarding your acquisition of the Desktop Font Software so as to enable Monotype to verify the existence and date of the transaction. The entire, exclusive and cumulative liability and remedy shall be that Monotype will use commercially reasonable efforts to cause the Desktop Font Software to conform to the documentation as soon as commercially practicable.

12. Monotype warrants to you that (i) the Web Font Software delivered to you through the Web Font Services will perform substantially in accordance with W3C specifications for the use of fonts in conjunction with the ‘@font-face rule’ specified in the cascading style sheets (“CSS”) specification set forth on the http://www.W3.org website as of the date of this Agreement, and (ii) the other Software will perform substantially in accordance with its documentation, in each case for the ninety (90) day period following the date you agree to the Agreement or for the Term, whichever is shorter. To make a warranty claim, you must, within the ninety (90) day warranty period, contact Monotype with sufficient information regarding your claim. If the Web Font Software does not perform substantially in accordance with this paragraph, the entire, exclusive, and cumulative liability and remedy shall be that Monotype will use commercially reasonable efforts to cause the Web Font Software provided herein to conform to the specifications within ninety (90) days or as soon thereafter as commercially reasonable. If the Software does not perform substantially in accordance with this paragraph, the entire, exclusive, and cumulative liability and remedy shall be that Monotype will use commercially reasonable effects to cause the Software provided herein to conform to its documentation as soon as commercially reasonable.

13. MONOTYPE DOES NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDIES FOR MONOTYPE’S BREACH OF ANY WARRANTY CONTAINED HEREIN. EXCEPT FOR THE FOREGOING LIMITED WARRANTIES, MONOTYPE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT WILL MONOTYPE BE LIABLE TO YOU OR ANYONE ELSE (i) FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST DATA, LOST BUSINESS OPPORTUNITIES, OR LOST SAVINGS, EVEN IF MONOTYPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) FOR ANY CLAIM AGAINST YOU BY ANY THIRD PARTY SEEKING SUCH DAMAGES EVEN IF MONOTYPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states or jurisdictions do not allow the exclusions of limitations of incidental, consequential or special damages, so the above exclusion may not apply to you. Also, some states or jurisdictions do not allow the exclusions of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. To the greatest extent permitted by law, any implied warranties not effectively excluded by the Agreement are limited to ninety (90) days. Some jurisdictions do not permit a limitation of implied warranties where the product results in physical injury or death so that such limitations may not apply to you. In those jurisdictions, you agree that Monotype’s liability for such physical injury or death shall not exceed One Hundred Thousand Dollars (U.S. $100,000), provided that such jurisdictions permit a limitation of such liability. This warranty gives you specific legal rights. You may have other rights that vary from state to state or jurisdiction to jurisdiction. The Font Software is non-returnable and non-refundable.

General

14. You acknowledge and agree that the inventory of Font Software available for your access and Use may vary depending on the Plan you have subscribed to as set forth in your Account, AND NOT ALL FONT SOFTWARE WILL BE AVAILABLE UNDER EVERY PLAN.  You further acknowledge and agree that not all Font Software is or will be available in all file formats. Font Software inventory and available file formats are subject to change at Monotype’s sole discretion. Monotype reserves the right to ADD, remove or update Mock-up Font Software, Trial Font Software and/OR Desktop Font Software from ANY OR ALL OF the Plan’s INVENTORY at its sole discretion at any time, and may use the SkyFonts Client Software installed on the Workstations in your Licensed Unit to do so.  

15. You agree that Monotype owns all right, title and interest in and to the Software, its structure, organization, code, and related files, including all property rights therein such as copyright, design and trademarks rights. You agree that the Software, its structure, organization, code, and related files are valuable property of Monotype and that any intentional Use of or access to the Software not expressly permitted by the Agreement constitutes a theft of valuable property.

16. You acknowledge that the Software is protected by the copyright and other intellectual property law of the United States and its various States, by the copyright and design laws of other nations, and by international treaties and your use of the Software shall be in compliance with such laws and treaties.

17. You may not rent, lease, sublicense, give, lend, or further distribute the Software, or any copy thereof. If your Plan allows for font sending, you may further distribute the Desktop Font Software only under the terms of the sending program/functionality. You may not copy the Software, except as expressly provided herein and you agree not to copy the design embodied within the Font Software. Any copies that you are expressly permitted to make pursuant to the Agreement must contain the same copyright, trademark, and other proprietary notices that appear on or in the Software.

18. You agree not to adapt, modify, alter, translate, convert, or otherwise change the Software, or to create Derivative Works from the Software or any portion thereof. You further agree not to use the Software in connection with software and/or hardware which creates Derivative Works of such Software. You may not alter the Software for the purpose of adding any functionality which the Software did not have when you first accessed the Software. You agree not to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, provided, however, that if you are located in a European Community member country or any other country which provides rights materially similar to the rights set forth in this proviso, you may reverse engineer or decompile the 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 Monotype upon written request).

19. You agree to use trademarks associated with the Software according to accepted trademark practice, including identification of the trademark owner's name. Trademarks can only be used to identify output produced by the Font Software. The use of any trademark as herein authorized does not give you any rights of ownership in that trademark and all use of any trademark shall inure to the sole benefit of Monotype. You may not change any trademark or trade name designation for the Software.

20. Except as noted in Section 21, the Agreement is governed by the laws of the Commonwealth of Massachusetts applicable to contracts wholly entered and performable within such Commonwealth (without regard to applicable conflict of laws provisions). The United States District Court for the District of Massachusetts or, if federal subject matter jurisdiction is lacking, the Superior Court of the Commonwealth of Massachusetts in Middlesex County, shall be the exclusive forum for any disputes arising out of or related to such agreement. Both you and Monotype agree to the personal jurisdiction and venue of these courts in any action related to such agreement. The Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.

21. This Section 21 only applies to you if you are a “consumer” located in the European Union (as such term is defined and interpreted under the EC Convention on the Law Applicable to Contractual Obligations (Rome 1980)). This Agreement shall be governed by, and interpreted and construed in its entirety in accordance with, the substantive laws in force in the country in which you have your habitual residence and the forum for any disputes arising out of or related to this Agreement shall be the courts competent for the place of your habitual residence. You can withdraw from this Agreement within one (1) month, without giving a reason, in textform (e. g. letter, fax or email), or – in case you receive any goods under this Agreement before that deadline – by returning such goods. The period shall begin after the receipt of these instructions in textform, however not before the day on which you receive the goods and not before the performance of duties to inform, if applicable. To comply with the time limit, it is sufficient to send the withdrawal or the goods in good time. The withdrawal is to be sent using the contact details for Monotype set forth at the bottom of this Agreement. A right of withdrawal may not be exercised if goods have been downloaded, sent to you by email or – in case of a delivery on CD-ROM – the delivered data carrier has been unsealed by you.

22. If your Account and any applicable fees paid indicate that you have acquired a Paid License through your Plan, your Paid License and this Agreement will be automatically renewed for a subsequent Term, and you will have the option of accepting the renewal of your Paid License and this Agreement for such subsequent Term(s) by paying the fee for each subsequent Term. Monotype reserves the right to adjust the fees associated with any Paid License at any time, however such adjusted fees shall not apply to you until the conclusion of your then-current Term. If you renew the Agreement for subsequent Term(s), you agree that the license fee for the Use of and access to the Software for such subsequent Term(s) may vary from the license fee for the previous Term based upon (a) Monotype’s previous adjustment of the fees associated with such licenses, (b) the length of the renewal Term, (c) the Desktop Font Software to which you request access, and (d) the usage or accessing of the Web Font Software by the Electronic Content. Monotype shall have the right to increase your license fee in respect of a current or renewal Term if your usage exceeds the allowed levels.  If you choose not to renew your Paid License for a subsequent Term, you agree and understand that the terms of this Agreement, including the fees associated with any Paid License, shall no longer apply to you. Any future licensing of any Paid License under this Agreement shall not constitute a revival of this Agreement, and any fees you pay for such future licensing of such product will be at Monotype’s then-current rates. The Term available for you to license any Plan may change in the future.   If your Account indicates that you have acquired a Free License, the Agreement will automatically renew for subsequent one (1) year terms unless the Agreement terminates or you upgrade your license. With a Free License, you agree to place a line of JavaScript on all Electronic Content that Uses or accesses Web Font Software which will enable the Web Font Services. This also gives Monotype the right to invoke an ad unit to be placed on all Electronic Content that uses our Web Font Software, with the formatting and content of such ad unit to be determined by Monotype in its sole discretion. Information regarding applicable license fees can be found on the pages containing the description of each Plan at www.fonts.com//web-fonts.  Such information and plans may be updated from time to time by Monotype in its sole discretion.

23. Upon failure by you to comply with the terms of this Agreement, Monotype shall be entitled to terminate this Agreement upon notice to you by notification in your Account, regular mail, telefax or email. The termination of the Agreement shall not preclude Monotype from suing you for damages resulting from any breach of the Agreement, and any early termination of this Agreement due to your failure to comply with its provisions and obligations shall not entitle you to a refund of fees paid for the remainder of your Term. Termination of this Agreement shall also constitute termination of the Agreement for any other services provided to you by Monotype that have been linked to your Account. The Agreement may only be modified in writing signed by an authorized officer of Monotype.

24. You have the rights expressly set forth in the Agreement and no other. All rights in and to the Software, including unpublished rights, are reserved under the copyright laws of the United States and other jurisdictions. Notwithstanding the foregoing, to the extent that any law, statute, treaty, or governmental regulation shall be deemed by a court of competent jurisdiction to provide you with any additional or different rights from those provided herein and such rights shall be deemed non-waiveable as a matter of law and to supersede the rights specifically provided herein, then such law, statute, treaty, or governmental regulation shall be deemed to be made a part of the Agreement. To the extent that any such rights created by any law, statute, treaty or governmental regulation are waiveable, you agree that your acceptance of the Agreement shall constitute an effective and irrevocable waiver of such rights. The Agreement may be enforced by Monotype or by an authorized dealer acting on behalf of Monotype.

25. If this product is acquired under the terms of a (i) GSA contract - use, reproduction or disclosure is subject to the restrictions set forth in the applicable ADP Schedule contract, (ii) DOD contract - use, duplication or disclosure by the Government is subject to the applicable restrictions set forth in DFARS 252.277-7013; (iii) Civilian agency contract - use, reproduction, or disclosure is subject to FAR 52.277-19(a) through (d) and restrictions set forth in the Agreement.

26. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration or any applicable export laws, restrictions or regulations.

27. All Software will be shipped F.O.B. Origin by customary industry methods of shipment.

28. Definitions: