BINDING AGREEMENT 

This Marvelous Designer Additional Terms governs the Licensee's use of the Licensed Materials and are incorporated in reference to the General Terms of Use ("General Terms").  This Marvelous Designer Additional Terms and the General Terms are collectively referred to as "MD Terms."  CLO and Licensee are sometimes referred to in this MD Terms individually as a "party" and collectively as the "parties." Pursuant to the terms and conditions of this MD Terms, CLO wishes to grant to Licensee, and Licensee wishes to receive, a license to the Licensed Materials (as defined hereinafter).

1.1 Any capitalized terms not defined herein shall have the meaning as defined in the General Terms. In case of any conflict between the General Terms and MD Terms, the latter shall control and prevail with regards to the use of Licensed Material. 

1.2 IF LICENSEE HAS ENTERED INTO ANOTHER AGREEMENT WITH CLO CONCERNING SPECIFIC SERVICES, INCLUDING ONLINE STORES SUCH AS CLO-SET CONNECT OR ANY OTHER MD RELATED PLATFORM OR SOFTWARE, THEN THE TERMS OF THAT AGREEMENT CONTROLS WHERE IT CONFLICTS WITH THE MD TERMS. 

1.3 IF LICENSEE HAS PREVIOUSLY ENTERED INTO A LICENSE AGREEMENT, WHICH INCLUDES AN END USER LICENSE AGREEMENT, THEN THAT AGREEMENT SHALL APPLY. IF NO ADDITIONAL LICENSE TERMS ARE PRESENTED TO AND SIGNED BY THE LICENSEE, THE MD TERMS SHALL APPLY.   

1.4 The license is exclusive to the Licensee identified in the relevant License Details and its Authorized Users. If Licensee's license or related information is shared with anyone who is not an Authorized User, CLO may (i) suspend or deactivate Licensee's license without any refund or compensation and (ii) charge additional fees to the Licensee based on any unauthorized use.

DEFINITIONS. Unless otherwise defined in the main body of the MD Terms, capitalized terms used in this MD Terms are defined as follows:

2.1 "Authorized User" means:

2.1.1 employees or personnel of Licensee who are under the control of and authorized by the Licensee to install or access the Licensed Materials. If applicable, Authorized User may include subcontractors, independent service providers, freelancers, and studios, provided Licensee obtains prior written consent from CLO. 

2.1.2 in the context of Academic Purpose, an Authorized User shall mean to include the faculty and students of such Licensee. If applicable, Authorized User may include lecturers and external instructors, provided Licensee obtains prior written consent from CLO. 

2.2 "CLO Avatars" means any avatars (i) included in the Licensed Materials or (ii) made available by CLO via CLO-SET CONNECT (accessible at https://connect.clo-set.com/) including, but not limited to, the interfaces, graphics, design, information, artwork, data, code, software, and all other elements and the derivatives thereof. For the avoidance of doubt, CLO Avatars included in the Licensed Materials constitute a part of the Licensed Materials.

2.3 "CLO Samples" means samples provided by CLO in the Licensed Materials, including, but not limited to, sample patterns and designs, modules for patterns and designs, and expressions of components and elements used in patterns and designs. CLO Samples may be modified where such Modifications are permitted by the intended functionality of the Licensed Materials. 

2.4 "Fees" means the "Monthly Subscription Fee" "Annual Subscription Fee," or the "Perpetuals Fee," or the "Update Fee," or other fees as mutually agreed upon in writing by the parties, as applicable and set forth in the Invoice. 

2.5 "Invoice" means the statement provided by CLO that sets forth, among other things, the order number, product, Fees, and/or License Details. 

2.5.1 "License Details" refers to the license information provided to Licensee by CLO exclusively for the purpose of this MD Terms. Such information is set forth in the Invoice and includes details such as the License Class, License Term, License Type, and authentication method for the Company's License.

2.6 "Internal Business Needs" means, with respect to the Licensed Materials, the use of such materials by an Authorized User of Licensee to satisfy the internal business requirements of Licensee in the ordinary course of such business. It is expressly understood and agreed that Licensee's Internal Business Needs do not include providing or making available the Licensed Materials to any third party, under any circumstance.

2.7 "License Class" means the class of license specified by CLO for the Licensed Materials, including the following:

2.7.1 Non-Fee Based License. If the License Details identify the License Class as a "Non-Fee Based License," Licensee may install the specified Licensed Materials designated in the License Details, and use the Trial License in accordance with the relevant Trial Purpose stipulated in Section 3.1, and if applicable, permit access to such copy of the Licensed Materials to Authorized Users. Non-Fee Based License include Personal Trial License, Student Trial License, Academic Trial License and Enterprise Trial License - each subject to separate terms and conditions. 

2.7.2 Fee-Based License. If the License Details identify the License Class as a "Fee-Based License," Licensee may install the specified Licensed Materials designated in the License Details subject to the License Type to use it for Licensee's Internal Business Needs, stipulated in Section 3.2, and permit access to such Licensed Materials to Authorized Users. Fee-Based License include Personal License, Student License, Academic License and Enterprise License - each subject to separate terms and conditions. 

2.8 "License Term" means a Perpetual Term, a Monthly Subscription Term, an Annual Subscription Term, a Trial Term, any other duration stipulated in the License Details as specified in the License Details, or as otherwise agreed to in writing by CLO through any other license agreements - each subject to separate terms and conditions as stipulated in Section 3.

2.9 "License Type" means either Standalone license or Network license specified for the Licensed Materials - each subject to their separate terms, conditions, and authentication methods as stipulated in Section 4. 

2.10 "Licensed Materials" means Software, Supplemental Materials and User Documentation (a) made available by CLO to Licensee for download, (b) electronically delivered prepackaged with this MD Terms, or (c) otherwise accompanied by this MD Terms, provided that (i) in the case of Software, the Software is identified in the License Details, and (ii) Licensee has paid (and continues to pay) the applicable Fees. Licensed Materials includes, without limitation, any Updates, and new versions of the Licensed Materials that CLO provides or makes available to Licensee.

2.11 "Licensee" means:

2.11.1 in the context  of individual use, either 
2.11.1.1 an individual, natural person (e.g. hobbyist, member of the general public, etc.) to which the Licensed Materials is exclusively licensed for personal use - and not on behalf of a Legal Entity that should be obtaining an Enterprise License under Section 3.2.4 in order to access the Licensed Materials and not on behalf of a Qualified Academic Institution that should be obtaining an Academic License in order to access the Software under Section 3.2.3; or 
2.11.1.2 a One Person Company, a Sole Proprietorship, a single-member LLC that does not elect to be treated as a corporation for tax purposes ("disregarded entity"), a freelancer, a self-employed independent contractor, or similarly situated self-employee otherwise in business for oneself - as verified through independent documentation such as articles of incorporation, business registration, tax returns/filings, proof of Self-Employment Tax payment, etc. CLO retains the sole discretion to request documentation verifying entity status prior to granting access to the Licensed Materials; 

2.11.2 in the context of student use, a natural, individual person who is a) enrolled at a Qualified Academic Institution to which the Licensed Materials is exclusively licensed for Student Purposes; b) aged 13 or older, and if considered a minor within the Licensee's respective jurisdiction, is accessing the Licensed Materials under the consent and supervision of a parent, legal guardian, or other legally responsible adult. In any event, if the Licensee is a minor in its jurisdiction, Licensee shall cease the use of the Licensed Materials and shall not submit any personal information to CLO;  

2.11.3 in the context of academic use, a single Qualified Academic Institution to which the Licensed Materials are exclusively licensed. CLO, in its sole discretion, retains the right to determine the eligibility of a Qualified Academic Institution;

2.11.4 in the context of enterprise use, a single Legal Entity to which the Licensed Materials is exclusively licensed. For clarification, unless otherwise mutually agreed and executed by both parties, "Licensee" refers only to a single, specifically identified Legal Entity, and does not include any Affiliate of any such Legal Entity.

2.12 "Licensee Work Product" means any original work created by Licensee using or incorporating the Software, including any modifications, derivatives, or customizations. Ownership is subject to the terms of the MD Terms. Licensee Work Product shall not include any pre-existing materials or intellectual property of CLO or any third party, or any elements of the Software that were not created or modified by Licensee. 

2.13 "Modification" means any substantial and original change by Licensee (but only to the extent permitted by the intended functionality of the Software and/or Supplemental Materials) to the substance of a CLO Sample or any change to the substance of the contents of a file containing a CLO Sample; and/or any new file that contains any part of a CLO Sample; all of which ensures that the CLO Sample is not the primary source of value and all of which possess an own degree of independent creativity through the Licensee. Modifications may not be made to Restricted CLO Samples.

2.14 "Qualified Academic Institution" means an educational institution which has been accredited by an authorized governmental agency or other recognized accrediting body, and retains such accreditations throughout the applicable License Term. IF APPLICABLE, QUALIFIED ACADEMIC INSTITUTION MAY INCLUDE HOME-BASED EDUCATIONAL PROGRAMS OR ANY OTHER ONLINE PROGRAMS FORMALLY DESIGNED TO EDUCATE STUDENTS OUTSIDE OF AN INSTITUTION RECOGNIZED BY AN ACCREDITING BODY. FOR CLARITY, ANY OTHER ONLINE PROGRAMS PREVIOUSLY ADDRESSED DO NOT INCLUDE INFORMAL ONLINE COURSES WITHOUT A CURRICULUM, INCLUDING BUT NOT LIMITED TO YOUTUBE OR ANY OTHER STREAMING PLATFORMS. CLO IN ITS SOLE DISCRETION MAY DETERMINE WHETHER LICENSEE QUALIFIES AS A QUALIFIED ACADEMIC INSTITUTION.     

2.15 "Permitted Number" means a maximum number (e.g., number of Authorized Users, number of concurrent users, number of computers, sessions, etc.) specified in the License Details applicable to a license of the Licensed Materials and to the License Type associated with such license. For clarity, the Permitted Number of concurrent users that may access the Software under Enterprise Licenses or Academic Licenses, on Licensee's behalf is equal to the number of licenses purchased by Licensee under this MD Terms. 

2.16 "Restricted CLO Samples" means CLO Avatars, non-modifiable dummies (and each of their elements), pre-designed clothing, trims and accessories (including, but not limited to, buttons, shoes, headwear, socks, and gloves) included in the Licensed Materials or made available by CLO via CLO-SET CONNECT (accessible at https://connect.clo-set.com/), and any other Licensed Materials specified as "Restricted Licensed Materials" (or similar verbiage).

2.17 "Software" means the Marvelous Designer (or "MD") software, the proprietary computer program for virtual clothing design which is developed, distributed or made available by CLO, as specified in the License Details.

2.18 "Supplemental Materials" means materials, other than Software and related User Documentation that are distributed or made available by CLO for use with Software. Supplemental Materials include, without limitation, CLO Samples and Restricted CLO Samples.

2.19 "Updates" means, subject to the payment or continued payment of applicable Fees, any corrections, patches, maintenance, and/or replacement of a Software version with a new Software version as and when CLO deems such Update is necessary to correct errors, remove, add or improve functionalities, and/or add service packs. Unless otherwise specified by CLO, where CLO makes Updates available to Licensee, CLO's obligations to support the previous version of the Software shall terminate in all respects following an Update thereto. 

2.10 "User Documentation" means the explanatory or instructional materials for Software or Supplemental Materials.

LICENSE CLASS, TERM, and CONDITIONS 

3.1 Non-Fee Based License. If the License Details specifies the License Class as Non-Fee Based License, Licensee receives access to the then-current version of the Software that CLO makes available on its website. All Non-Fee Based Licenses have a fixed term specified in the License Details. If no such term is specified, the term is thirty (30) days from the date the license is delivered to the Licensee. 

All Non-Fee Based Licenses are subject to the following conditions: a) no individual person or Legal Entity may obtain a Non-Fee Based License more than once, regardless of the version of the Software that was accessed under such Non-Fee Based License; b) all persons or Legal Entities are expressly limited to one Non-Fee Based License; c) once a Non-Fee Based License expires, it may not be extended or renewed (unless mutually agreed upon by the parties); and d) any access to, or use of, any aspect of Software beyond the scope or expiration of any Non-Fee Based License will be on a paid basis - regardless of whether the Licensee utilize the same or another account for such access or use. Notwithstanding the foregoing, each Non-Fee Based Licenses shall be subject to its relevant trial purposes as stipulated below:

3.1.1 Personal Trial Period. Licensee qualified under Section 2.11.1. may install the specified Licensed Materials designated in the License Details on a monthly or annual basis. The relevant Fee for the subscription shall be waived for the initial fourteen (14) days of Licensee's subscription ("Trial Period") and only upon the expiration of the Trial Period shall Licensee be charged in accordance with ANNEX I. During the Trial Period, Licensee shall use the license solely for the Personal Trial Period Purpose."Personal Trial Period Purpose" means purposes of evaluation and demonstration of the capabilities of the Licensed Materials but excludes competitive analysis and any commercial, professional, or other for-profit purposes. For clarity, Personal Trial Period Purpose further excludes, but not limited to, the distribution and dissemination of all or any portion of the Licensed Materials contained therein to any third parties (e.g., legal entities, Qualified Academic Institutions.)

3.1.2 Student Trial Period. Licensee qualified under Section 2.11.2. may install the specified Licensed Materials designated in the License Details on an annual basis. During the Trial Period, Licensee shall use the license solely for the Student Trial Period Purpose. "Student Trial Period Purpose" means purposes of initial evaluation and demonstration of the capabilities of the Licensed Materials but excludes competitive analysis and any commercial, professional, or other for-profit purposes. For clarity, Student Trial Period Purpose further excludes the distribution and dissemination of all or any portion of the Licensed Materials contained therein in any form, including but not limited to, tutoring, training, and/or educating third parties. 

3.1.3 Academic Trial License. Licensee qualified under Section 2.11.3. may install the specified Licensed Materials designated in the License Details and permit access to such copy of the Licensed Materials solely by an Authorized User, solely for Academic Trial License Purposes. "Academic Trial License Purpose" means purposes of evaluation and demonstration of the capabilities of the Licensed Materials but excludes competitive analysis and any commercial, professional, or other for-profit purposes in the context of academic use by an Authorized User.  For clarity, Academic Trial License Purpose further excludes using the Licensed Materials for long-term educational courses.

3.1.4 Enterprise Trial License. Licensee qualified under Section 2.11.4. may install the specified Licensed Materials designated in the License Details and permit access to such copy of the Licensed Materials solely by an Authorized User, solely for Enterprise Trial License Purposes. "Enterprise Trial License Purposes" means purposes of evaluation and demonstration of the capabilities of the Licensed Materials but excludes competitive analysis and any commercial, professional, or other for-profit purposes. For clarity, Enterprise Trial License Purposes does not include making available the Licensed Materials (or work product made through the Licensed Materials) to any third party, including but not limited to, studios and/or  independent contractors.

Any violation of the spirit or letter of the Section herein - as determined in the sole discretion of CLO - shall be subject to technical and legal remedies including but not limited to immediate suspension or termination (without prior notice) of the Licensed Materials. 

3.2 Fee Based License.  

3.2.1 Personal License. Licensee qualified under Section 2.11.1 may install the specified Licensed Materials designated in the License Details solely for a Personal Purpose.
3.2.1.1 Personal Purpose. Under a Personal license, licensee may install the specified Licensed Materials subject to the License Type, and permit access to such Licensed Materials solely by a single authorized user (a natural, individual person), and solely for its personal use if Licensee is eligible for a Personal License under Section 2.14.1.1 or solely for Licensee's Internal Business Needs if Licensee is eligible for a Personal License under Section 2.11.1.2. 
3.2.1.2 Personal Licenses are offered on a Monthly Subscription basis but may be prepaid in twelve (12) month batches for a discount, as further described on our pricing page or see ANNEX I (1).
3.2.1.3 For Licensee with Personal Perpetual Subscription see ANNEX I (3).

3.2.2 Student License. Licensee qualified under Section 2.11.2 may install the specified Licensed Materials designated in the License Details solely for a Student Purpose.
3.2.2.1 Student Purpose. Under a Student License, Licensee may install the specified Licensed Materials subject to the License Type, and permit access to such Licensed Materials solely by a single Authorized User (a natural, individual person), and solely for its Student Purposes. "Student Purposes" means purposes directly related to learning, training, research and development that are part of the educational program offered by a Qualified Academic Institution. Student Purposes do not include commercial, professional or any other for-profit purpose. 
3.2.2.2 Student Licenses are offered on a limited basis, subject to be prepaid in twelve (12) month batches. For further specification see ANNEX I (1).

3.2.3 Academic License. Licensee qualified under Section 2.11.3 may install the specified Licensed Materials designated in the License Details solely for an Academic Purpose.
3.2.3.1 Academic Purpose. Under an Academic License, Licensee may install the specified Licensed Materials subject to the license type, and permit access to such Licensed Materials solely by an Authorized User, solely for Academic Purposes. "Academic Purposes" means purposes directly related to learning, teaching, training, research and development teaching that are part of the instructional functions performed by a Qualified  Academic Institution. Academic Purposes do not include commercial, professional or any other for-profit purposes, other than those inherently involved in the Internal Business Needs of the Qualified Academic Institution. For clarity, Licensee who solely qualify for an Academic License cannot purchase Student Licenses. CLO retains the right to solely determine Licensee's eligibility and take any action it deems appropriate to bring Licensee into compliance.
3.2.3.2 For Licensee with Academic Annual Subscription, see ANNEX I (2).
3.2.3.3 For Licensee with Academic Perpetual Subscription, see ANNEX I (3).

3.2.4 Enterprise License. Licensee qualified under Section 2.11.4 may install the specified Licensed Materials designated in the License Details solely for an Enterprise Purpose.

3.2.4.1 Enterprise Purpose. Under an Enterprise License, Licensee may install the specified Licensed Materials subject to the License Type, and permit access to such Licensed Materials solely by Authorized Users, and solely for its Internal Business Needs. For clarity, Licensees who solely qualify for an Enterprise License cannot purchase Personal Licenses. CLO retains the right to solely determine Licensee's eligibility and take any action it deems appropriate to bring License into compliance. 

3.2.4.2 For Licensee with Enterprise Annual Subscription. see ANNEX I (2).

3.2.4.3 For Licensee with Enterprise Perpetual Subscription, see ANNEX I (3). 

3.3 License Grant. Subject to and conditioned on Licensee's continuous compliance with this MD Terms, CLO grants Licensee, for the limited duration of the applicable Subscription Term for which the applicable Fees have been paid: (A) a non-exclusive, non-sublicensable, non-transferable, personal, limited license to install and/or access the Licensed Materials, in each case solely (i) within the scope of the License Class, License Type and Permitted Number specified in the License Details, and (ii) in accordance with the other terms of this MD Terms; and (B) to the extent any Modification contains any CLO Sample, a worldwide, royalty-free license in respect of such CLO Sample—unless the Modification contains any CLO Avatar, in which case Sections 5.4 shall apply. 

3.4 Additional Terms. Any or all of the Licensed Materials may be subject to terms that are in addition to or different from the terms set forth in this MD Terms. CLO will provide such additional or different terms to Licensee, and Licensee shall promptly (but no later than 10 days after being provided with such terms) provide its consent to such terms or specify reasons for their rejection. The Software uses or contains Third Party Software which are subject to their MD Terms.

3.5 Other Materials. If CLO provides or makes available to Licensee any additional materials associated with the Licensed Materials, including Updates to the Licensed Materials or any Supplemental Materials or User Documentation, (a) if there are no other terms for such additional materials, they will be subject to the same terms as the Licensed Materials; or (b) such additional materials may include or be subject to other terms in addition to or different from the terms set forth in this MD Terms (including, without limitation, additional or different fees, MD Terms, or restrictions on use). CLO will provide such additional or different terms to Licensee, and Licensee shall promptly (but no later than ten (10) days after being provided with such terms) provide its consent to such terms or specify reasons for their rejection. 

3.6 Cancellations and Refunds. Licensee retains the right to cancel purchased Monthly Subscription, Annual Subscription, or Perpetual Subscription at any time ("Cancellation"), except that of Monthly Subscription prepaid in twelve (12) months batches. Unless otherwise explicitly granted by CLO, all Cancellation shall be non-refundable. CLO reserves the sole right to amend and enforce its Cancellation policies. Fees for the relevant Subscription Term shall not be charged or invoiced for the subsequent Term once Cancellation takes place. Licensee further retains access to the Licensed Materials  for the remaining Term of the relevant License Subscription period after its Cancellation. For clarity, precedence of Cancellations shall not restrict or prevent the Licensee to repurchase in the future. 

LICENSE TYPE

4.1 Standalone. Under a Standalone license—also known as a "node-locked" license—the Licensed Materials must be installed on a single computer for non-concurrent use.  Specifically, because a Standalone license is tied to both a single computer and a single USER ID; the license may not be accessed from any other computer at the same time or by more than one Authorized User at a time. STANDALONE ANNUAL SUBSCRIPTION ARE ONLY OFFERED UNDER THE ONLINE AUTHENTICATION METHOD, WHEREAS STANDALONE PERPETUALS (BEFORE SALES OF SUCH LICENSES WERE DISCONTINUED ON NOVEMBER 25, 2020) USED TO BE OFFERED UNDER BOTH THE ONLINE AUTHENTICATION METHOD AS WELL AS THE OFFLINE AUTHENTICATION METHOD.

4.1.1 Standalone Online Authentication. IN ORDER FOR AN AUTHORIZED USER TO LOG-IN AND ACCESS THE LICENSED MATERIALS UNDER A STANDALONE ONLINE AUTHENTICATION LICENSE, INTERNET CONNECTION WILL BE REQUIRED IN EACH INSTANCE TO AUTHENTICATE THE AUTHORIZED USER'S USER ID AND PASSWORD. IN ORDER TO ACCESS SUCH LICENSED MATERIALS ON A DIFFERENT COMPUTER, Licensee must contact CLO to submit a request that THE STANDALONE ONLINE AUTHENTICATION LICENSE IN QUESTION BE DEACTIVATED FROM THE PREVIOUS COMPUTER AND ACTIVATED ON THE NEW COMPUTER.  

4.2 Network. Under a Network license—also known as a "floating license" mode—Licensee may install copies of the Licensed Materials and access the Licensed Materials on a "Networked Basis," subject to the additional terms and conditions specific to the various authentication methods set forth below in this section.  "Networked Basis" means a computing environment that includes a computer acting as a file server which allows the Licensed Materials installed on such computer to be uploaded and installed to, and operated, viewed or otherwise accessed from, other computers through a local area network (LAN) connection or other network connection, subject to the Permitted Number of computers or Permitted Number of concurrent Authorized Users, as applicable.

4.2.1 Network Online Authentication. IN ORDER FOR AN AUTHORIZED USER TO ACCESS THE LICENSED MATERIALS UNDER A NETWORK ONLINE AUTHENTICATION LICENSE, INTERNET CONNECTION WILL BE REQUIRED TO LOG-IN IN EACH INSTANCE TO AUTHENTICATE THE AUTHORIZED USER'S USER ID AND PASSWORD.  Under Network Online Authentication licenses, the designated Licensed Materials may be installed locally (RATHER THAN NON-LOCALLY ON COMPUTERS CONNECTED TO A NETWORK) on as many computers of Authorized Users as necessary for Licensee's Internal Business Needs, subject to Section 2.8; provided that the Permitted Number of Authorized Users who may access or use the Licensed Materials concurrently at any one time shall not exceed the total number of non-expired licenses provided to Licensee under this MD Terms. 

4.2.2 Network Offline Authentication

4.2.2.1 Software-based License Key ("SL Key"). See ANNEX II.

4.2.2.2 Hardware-based License Key ("Dongles"). See ANNEX 

LIMITATION AND EXCLUSIONS

5.1 Unauthorized Uses. In addition to such other Licensee obligations specified in this MD Terms, Licensee shall not (a) distribute, rent, loan, lease, sell, sublicense, transfer or otherwise provide access to all or any portion of the Licensed Materials to any person or Legal Entity except as expressly set forth in this MD Terms or as expressly authorized in writing by CLO; (b) remove, alter or obscure any proprietary notices, labels or marks in the Licensed Materials; (c) decompile, disassemble or otherwise reverse engineer the Licensed Materials; (d) translate, adapt, arrange, or create derivative works based on, or otherwise extract from or modify the Licensed Materials for any purpose, provided however Licensee may make Modifications to CLO Samples where such modifications are permitted by the intended functionality of the Licensed Materials; (e) permit the Licensed Materials to be used on a service bureau, time sharing basis or otherwise; (f) distribute CLO Samples as Licensee's work product without substantial and original material Modifications, which were independently created by the Licensee and possess its own degree of creativity through the Licensee; (g) distribute Restricted CLO Samples; or (h) otherwise use the Licensed Material for any purpose other than the intended use and functionality of the Licensed Material.

5.2 Effect of Unauthorized Use. Licensee will not engage in, and will not permit or assist any third party to engage in any of the uses or activities prohibited in or inconsistent with this MD Terms (collectively, "Unauthorized Uses"). Any such Unauthorized Use, and any installation of or access to the Licensed Materials provided under this MD Terms outside of the scope of the applicable license grants or otherwise not in accordance with this MD Terms, constitute a breach of this MD Terms. Licensee shall notify CLO promptly of any such known or suspected Unauthorized Uses or other unauthorized installation or access.

5.3 Circumvention. Licensee may not (i) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by CLO in connection with the Licensed Materials, or (ii) install or access the Licensed Materials with any product code, authorization code, serial number, or other copy-protection device not supplied by CLO. Without limitation of the generality of the foregoing, Licensee may not utilize any equipment, device, software, or other means to circumvent or remove any protection measure provided or made available by CLO for managing, monitoring or controlling installation of or access to the Licensed Materials. CLO will have no responsibility or liability whatsoever if Licensee combines or links Licensee work product or other data created with Licensed Materials with work product or other data otherwise created. In addition, Licensee will not remove, alter or obscure any such notices or limitations.

5.4 CLO's Default Avatars.

5.4.1 Licensee shall not distribute, sell, monetize, publish, post, or otherwise disseminate any CLO Avatar (a) onto any e-commerce website or (b) as part of any advertising, marketing, or promotional media (collectively, "Disseminate"):
5.4.1.1 without the prior written consent of CLO and upon the payment of a royalty fee to CLO (in the amount of $3,000 per avatar); or
5.4.1.2 unless proper attribution is given to CLO in each instance in which an avatar is so Disseminated, pursuant to the specifications CLO provided. 

5.4.2 Sample Distributions. For clarity, Licensee shall have the right to use CLO Avatars in conjunction with Modifications to send as samples to suppliers, customers, factories, and Affiliates (collectively, "Sample Distribution") without having to comply with Section 5.4.1 provided that: 

5.4.2.1 such suppliers, customers, factories, or Affiliates and their respective personnel do not gain access to any other component of the Licensed Materials by virtue of such Sample Distributions (unless such suppliers, customers, factories, or Affiliates have purchased or received from CLO their own licenses to the Licensed Materials); and

5.4.2.2 proper attribution is given to CLO in each instance of such Sample Distribution pursuant to the specifications CLO provided.

ALL RIGHTS RESERVED. CLO and its licensors retain title to and ownership of, and all other rights with respect to, the Licensed Materials and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. Licensee has only the limited licenses granted with respect to the Licensed Materials expressly set forth in this MD Terms, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the Licensed Materials are licensed, not sold, and that rights to install and/or access the Licensed Materials are acquired only under the license from CLO. Any updates to the Software are also governed by this MD Terms. 

PRIVACY AND USE OF INFORMATION, CONNECTIVITY AND ACTIVATION

7.1 Privacy and Use of Information; Connectivity. For Network Online Authentication licenses, Licensee acknowledges and agrees that when the Licensed Material is installed by Licensee and connected to the Internet, CLO (and/or third parties acting on behalf of CLO) may automatically collect certain information and data of Licensee, including but not limited to, USER IDs, encrypted passwords, the specifications of hardware utilized by Authorized Users to access the Licensed Materials (HWIDs),  use logs, and IP addresses ("Licensee Data"). The Licensee Data is used solely for purposes of including but not limited to, user registration, activation, providing update notifications and update options, updating, validating, monitoring, installation, providing technical support, and such other purposes reasonably necessary to monitor, maintain, provide and improve the Software. For clarity, how Licensee Data is collected, used, shared, or otherwise processed information is governed in accordance with the Privacy Policy (https://legal.clo-set.com/privacy). Licensee hereby consents to (i) CLO (and/or third parties acting on behalf of CLO) monitoring, maintaining, using, storing and disclosing such Licensee Data within the scope of and solely as permitted under this MD Terms, including the storage of Licensee Data in data centers hosted by third party providers; (ii) the transfer of Licensee Data across international borders where CLO and CLO Affiliates operate; and that (iii) certain aspects of the Licensed Materials require Licensee's access to and use of content and services that are hosted on websites maintained by CLO. Accessing such content or services and use of Licensed Materials will cause Licensee's computer, without additional notice, to connect automatically to the Internet and to communicate with CLO. 

7.2 Activation and Security. Installation of and access to the Licensed Materials require, and the continued use thereof may from time to time require, remote authentication by CLO or activation codes issued by CLO. LICENSEE ACKNOWLEDGES AND AGREES THAT INSTALLATION OF AND/OR ACCESS TO LICENSED MATERIALS MAY BE DISABLED BY CLO PROTECTION MECHANISMS IF LICENSEE TRIES TO TRANSFER ALL OR A PART OF THE LICENSED MATERIALS TO ANOTHER COMPUTER, IF LICENSEE TAMPERS WITH THE TECHNICAL PROTECTION MECHANISMS OR DATE-SETTING MECHANISMS ON A COMPUTER OR IN THE LICENSED MATERIALS, IF LICENSEE USES THE LICENSED MATERIALS PAST THE APPLICABLE LICENSE TERM, OR IF LICENSEE UNDERTAKES CERTAIN OTHER ACTIONS THAT AFFECT THE SECURITY OR UNDER OTHER CIRCUMSTANCES AND THAT, IN ANY SUCH EVENT, LICENSEE'S ACCESS TO LICENSEE'S WORK PRODUCT AND OTHER DATA MAY BE AFFECTED.

LIMITED WARRANTY AND DISCLAIMERS

8.1 Limited Warranty.  CLO warrants that, as of the date on which the Licensed Materials (and hardware media, if any, on which such Licensed Materials are contained) are delivered to Licensee and for thirty (30) days thereafter or if the License Term is shorter, such shorter period ("Warranty Period"), the Licensed Materials will provide the features and functions described in the User Documentation portion of the Licensed Materials. CLO's entire liability and Licensee's exclusive remedy during the Warranty Period ("Limited Warranty") will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at CLO's option, (i) to attempt to correct or work around errors, if any, or (ii) to refund the Annual Subscription Fee paid by Licensee and terminate this MD Terms or the license specific to such Licensed Materials. Such refund is subject to the return of the Licensed Materials to CLO. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. CLO DOES NOT SEEK TO LIMIT LICENSEE'S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. FOR THE AVOIDANCE OF DOUBT, CLO MAKES THE LIMITED WARRANTY SET FORTH IN THIS SECTION ONLY FOR THE LICENSED MATERIALS THAT ARE PURCHASED OR ACQUIRED THROUGH LEGAL AND VALID PROCESS AS REQUIRED IN THIS MD TERMS.

8.2 Disclaimer.
 

8.2.1 EQUIPMENT. THE LICENSEE ACKNOWLEDGES THAT IN ORDER TO ACCESS THE LICENSED MATERIALS, THE LICENSEE MUST PROVIDE ALL EQUIPMENT AND SOFTWARE NECESSARY, INCLUDING BUT NOT LIMITED TO, A COMPUTER, INTERNET ACCESS, AND/OR DATA FEES. CLO SHALL NOT BE RESPONSIBLE FOR ANY FEES OR CHARGES INCURRED BY THE LICENSEE IN CONNECTION WITH ACCESSING THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, INTERNET FEES, DATA FEES, OR ANY OTHER THIRD PARTY FEES. THE LICENSEE AGREES TO ASSUME FULL RESPONSIBILITY FOR ALL SUCH FEES AND CHARGES.

8.2.2 EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLO, ITS AFFILIATES, LICENSORS AND THIRD PARTY PROVIDERS, OR THEIR RESPECTIVE DIRECTORS, OFFICERSA, EMPLOYEES OR AGENTS (COLLECTIVELY "CLO PARTIES"), MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY LICENSED MATERIALS. 

8.2.3 LICENSEE EXPRESSLY AGREE THAT ITS USE OF, OR INABILITY TO USE, THE LICENSED MATERIALS IS AT ITS SOLE RISK. CLO WILL HAVE NO LIABILITY WHATSOEVER AS A RESULT OF LOSS OR DAMAGE TO CONTENT, OR FAILURE TO STORE OR ENCRYPT CONTENT. THE LICENSED MATERIALS AND ANY CONTENT APPEARING ON THE SERVICES, INCLUDING USER CONTENT, AND LICENSED MATERIALS, ARE PROVIDED ON AN "AS IS'' AND "AS AVAILABLE" BASIS. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, CLO PARTIES MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES OR LICENSED MATERIALS. CLO DISCLAIMS ANY WARRANTIES OF TITLE OR IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF NON-INFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS MD TERMS.

8.2.4 EXCEPT AS SPECIFIED IN SECTION 8.1, ANY STATEMENTS OR REPRESENTATIONS ABOUT THE LICENSED MATERIALS AND THEIR FEATURES OR FUNCTIONALITY IN THE LICENSED MATERIALS OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, CLO DOES NOT WARRANT: (a) THAT THE OPERATION OR OUTPUT OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE; (b) THAT ERRORS WILL BE CORRECTED BY CLO OR ANY THIRD PARTY; OR (c) THAT CLO OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY. 

8.2.5 THE SOFTWARE MAY BE SUBJECT TO OTHER LIMITATIONS, DISCLAIMERS OR WARRANTIES SET FORTH IN AN APPLICABLE LICENSE AGREEMENTS. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF SUCH LICENSE AGREEMENT AND THIS MD TERMS, THE LICENSE AGREEMENT SHALL CONTROL WITH RESPECT TO SUCH SOFTWARE ONLY. SUCH SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE APPLICABLE LICENSE AGREEMENT. 

LIMITATION OF LIABILITY

9.1 Limitation on Type and Amount of Liability. 

9.1.1 IN THE CONTEXT OF LICENSEE DEFINED UNDER SECTION 2.11.1 AND 2.11.2, IN NO EVENT WILL CLO PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY EVEN IF CLO WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT ANY CLAIM RELATING TO THE PERFORMANCE OR NON-PERFORMANCE BY CLO PURSUANT TO THIS MD TERMS, OR IN ANY OTHER WAY CONCERNING THE LICENSED MATERIALS, THE ACTUAL DAMAGES TO WHICH LICENSEE MAY BE ENTITLED SHALL BE LIMITED TO THE FEES, IF ANY, PAID BY THE LICENSEE FOR THE USE OF THE LICENSED MATERIALS IN THE 180 DAY PERIOD PRECEDING LICENSEE'S CLAIM AND IF LICENSEE HAS NOT PAID ANY AMOUNTS DURING THAT TIME PERIOD, LICENSEE ACKNOWLEDGES THAT ITS SOLE REMEDY SHALL BE TO CEASE USING THE LICENSED MATERIALS AND TERMINATE ITS ACCOUNT. FOR CLARITY, IF LICENSEE IS A CALIFORNIA RESIDENT, LICENSEE WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

9.1.2 IN THE CONTEXT OF LICENSEE DEFINED UNDER SECTION 2.11.3 AND 2.11.4, IN NO EVENT WILL CLO PARTIES HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, USE, REVENUE, DATA OR BUSINESS OPPORTUNITY; OR FOR BUSINESS INTERRUPTION) REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY. IN ADDITION, THE CUMULATIVE LIABILITIES OF CLO AND ITS SUPPLIERS  ARISING OUT OF OR RELATING TO ANY LICENSED MATERIALS WILL NOT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE FOR SUCH LICENSED MATERIALS. 

9.2 Application of and Basis for Limitations.  THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS MD TERMS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF CLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF ITS ESSENTIAL PURPOSE. 

TERM AND TERMINATION 

10.1 Term. This MD Terms shall be effective from the Effective Date and shall act in accordance with the License Term. 

10.1.1 License Term. Each license under this MD Terms, with respect to each specified set of Licensed Materials covered by this MD Terms, will become effective as of the latest to occur of (i) upon delivery of the specific Licensed Materials if the license in question is purchased pursuant to License Details executed by the parties, or (b) the starting date of License Term specified in the License Details. 

10.1.2 With respect to any Licenses purchased by Licensee under this MD Terms, CLO's corresponding obligations to Licensee under this MD Terms during the applicable Term are conditioned upon Licensee's payment of the applicable Fee for that Term, as set forth in the Invoice.

10.2 Termination or Suspension.  Each of CLO or Licensee may terminate this MD Terms and Licensee's license as to Licensed Materials if the other party is in breach of this MD Terms and fails to cure such breach within twenty (20) days after written notice of the breach; however, if Licensee is in breach of Section 3 or Section 5, CLO may terminate this MD Terms and Licensee's license to Licensed Materials immediately, without prior or further notice to Licensee. In addition, CLO may, as an alternative to termination, suspend Licensee's license to the Licensed Materials and/or other CLO obligations or Licensee rights under this MD Terms, if Licensee fails to pay the applicable Fees to CLO or otherwise fails to comply with the provisions of this MD Terms or other terms relating to any such license or other associated materials. CLO may also terminate this MD Terms if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee's creditors. This MD Terms will terminate automatically without further notice or action by CLO if Licensee goes into liquidation. Each CLO or Licensee may terminate this MD Terms for convenience, upon sixty (60) days prior written notice; provided that the MD Terms shall not terminate until all then-active Subscription Terms of all prepaid Annual Subscription issued hereunder expire.

10.3 Effect of Termination of MD Terms or License. Upon termination or expiration of this MD Terms, the licenses granted hereunder will terminate and Licensee will not be able to access or retrieve any content associated with the account.  Any Annual Subscription not so renewed expires at the end of the applicable License Term.  Upon termination or expiration of any license granted to Licensee: (a) Licensee must cease all use of the Licensed Materials to which such license applies and uninstall all copies of the Licensed Materials; (b) at CLO's request, Licensee agrees to destroy or return to CLO all the Licensed Materials; and (c) CLO reserves the right to require Licensee to show satisfactory proof that all copies of the Licensed Materials have been uninstalled and, if so requested by CLO, destroyed or returned to CLO.

10.4 Survival. Sections 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 will survive any termination or expiration of this MD Terms.

GENERAL PROVISIONS

11.1 CLO and Affiliates.  For the purposes of this paragraph, "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with CLO. Licensee acknowledges and agrees that CLO may arrange to have its Affiliates engage in activities in connection with this MD Terms, provided that CLO (and not such Affiliates) will remain subject to the obligations under this MD Terms. Licensee acknowledges and agrees that CLO may assign or subcontract any of its rights or obligations under this MD Terms. 

11.2 Third Party Software. Licensee acknowledge that Service may contain copyrighted software of third parties, including open source software, which are obtained under a license from such parties ("Third Party Software"), which can be found here. 

11.3 Export Control. Licensee acknowledges and agrees that the Licensed Materials are subject to compliance with United States and other applicable country export control and trade sanctions laws, rules and regulations (collectively, "Export Control Laws"). Licensee understands that the requirements and restrictions of the Export Control Laws as applicable to Licensee may vary depending on the Licensed Materials provided under this MD Terms and may change over time. Licensee shall be solely responsible for (i) determining the precise controls applicable to the Licensed Materials, and (ii) complying with the Export Control Laws and monitoring any modifications to them. 

11.4 Entire Agreement.  This MD Terms and any other terms referenced in this MD Terms constitute the entire agreement between the parties with respect to the subject matter hereof, except for any other license agreement executed between the parties. If the parties have executed a mutual non-disclosure agreement prior to this MD Terms, the mutual non-disclosure agreement shall remain in effect.


ANNEX I - Monthly Subscription, Annual Subscription and Perpetual 

1. Monthly Subscription. When Licensee purchases a Personal or StudentLicense on a Monthly Subscription basis, Licensee will receive access to the then-current version of the Licensed Materials that CLO makes available online on its website, subject to the payment of the applicable Monthly Subscription Fee. 

1.1 Updates. The right to receive Updates is included in the Monthly Subscription Fee, either by paying on a monthly basis or prepaying in twelve (12) months batches.  

1.2 Monthly Subscription Term. The Subscription Term of Monthly Subscription is either one (1) calendar month, if paid on a monthly basis, or twelve (12) calendar months, if prepaid in twelve (12) month batches ("Monthly Subscription Term").  

1.3 Auto-Renewals. Monthly Subscription Terms, paid on a monthly basis, renew automatically, unless Licensee cancels the subscription. Licensee will be obligated to pay the corresponding Monthly Subscription Fees for any and all Monthly Subscription Terms that are renewed, unless the Monthly Subscription is subject to Cancellation. Monthly Subscription Terms, prepaid in twelve (12) month batches, are not subject to Cancellation and auto-renewals, prior to and after, the twelfth month respectively.

1.4 Limited Renewals for Student Licenses.  Student License is offered on a limited basis. Licensee may purchase one (1) Student License within forty-eight (48) months from the date of its initial purchase. For clarity, the Licensee shall then be entitled to purchase a total of two (2) Student Licenses within four (4) years.  

2. Annual Subscription. When Licensee purchases an Academic or Enterprise License on an Annual Subscription basis, Licensee will receive access to the then-current, non-perpetual  version of the Licensed Materials that CLO makes available online on its website, subject to the payment of the applicable Annual Subscription Fee (set forth in the License Details).  

2.1 Initial Term. Any Annual Subscription listed in the License Details and purchased contemporaneously with the execution of this MD Terms will commence as of the latest to occur of (i) the Effective Date of this MD Terms or (ii) upon delivery of the specific Licensed Materials, and will continue for the period of twelve (12) months thereafter ("Initial Term").

2.2 Renewal Term. Unless otherwise agreed to in writing by the parties, the twelve (12) month renewal term following either the Initial Term or a previous Renewal Term. For clarity, the Initial Term or previous Renewal Term may either be a full twelve (12) month term or a prorated term. No Renewal Term shall become effective unless CLO provides Invoice and is purchased by Licensee. Any Licenses under an Annual Subscription basis that are not renewed, expire at the end of the applicable License Term and become subject to Section 10 herein. 

2.3 The Initial Term and any subsequent Renewal Terms are collectively referred to herein as the "License Term," 'Term," "Annual Subscription," "Subscription Term," or "Annual Subscription Term".

3. Perpetual Subscription. When Licensee purchases a Personal, Academic, or Enterprise License on a Perpetual Subscription basis, Licensee receive access to the then current version of the Licensed Materials that CLO makes available on CLO's downloadable archive.  Perpetual Subscriptions are subject to the payment of a one-time Perpetual Subscription Fee, and/or the applicable Update Fees (set forth in the License Details). 

3.1 Discontinued. As of November 25, 2020, and the release of Version 10 of the Marvelous Designer Software, CLO no longer offers Perpetual Subscriptions for purchase. For any previously purchased Perpetual Subscription, CLO will continue to make available Updates subject to the payment of additional Fees— up to Version 12 of the Software (i.e. up to approximately two to three years after Perpetual Subscriptions are discontinued). Alternatively, any previously purchased Perpetual Subscriptions may be traded-in for an Annual Subscription upon the payment of the applicable Update Fee, where the Annual Subscription Fee for such Annual Subscription will be waived of for the Initial Term and first Renewal Term only. However, notwithstanding any other provision of these Terms, CLO has no obligation to provide any Updates, support (technical or otherwise) or license installers to Licensee or any customer or Authorized User for any Software that is more than three (3) versions of the Software behind the latest version.  

3.2 Updates.  Licensee is not required to purchase any Updates, but any such Update to the Licensed Materials subject to a Perpetual Subscription requires the payment of additional Update Fees in addition to the one-time Perpetual Subscription Fee:

3.3 Updates for Recent Versions.  For Updates to a version of the Software that is less than three (3) versions behind the  then-current version, the Update Fee shall be:  

3.3.1 Twenty-five percent (25%) of the Perpetual Subscription Fee, if the version of the  Software being Updated is the version immediately preceding the then-current  version; or 

3.3.2  Forty percent (40%) of the Perpetual Subscription Fee, if the version of the Software  being Updated is two or three versions behind the then-current version.

3.4 Updates for Significantly Older Versions.  For any Update to a version of the Software that is more than three (3) versions behind  the then-current version, Licensee must purchase a new Annual Subscription in order to access the latest version of the Software.

3.5 Trade-In Option for Personal Perpetual Subscriptions. 

3.5.1 Upon the payment of the applicable Update Fee as set forth in License Details, Licensee may trade in any previously purchased Perpetual Subscription, up to three (3) versions behind the latest version of the Software (up to Version 12 of the Software), for an Annual Subscription. In such case the Annual Subscription Fee for the initial Term (i.e. for Subscription Year 1) shall be waived. However, if Licensee chooses to renew any such Annual Subscription for subsequent Renewal Terms after the expiration of the Initial Term (i.e., for Subscription Year 2 and beyond), Licensee shall be responsible for payment of the full Annual Subscription Fee to CLO for each Renewal Term. It is important to note that all Trade-Ins are final and Licensee shall have no right to revert to or retrieve previously traded-in perpetual subscriptions.

3.6 Trade-In Option for Existing Enterprise Perpetual Subscriptions for the MD Software. 

3.6.1 Upon the payment of the applicable Update Fees as set forth above, any previously purchased Enterprise Perpetual Subscriptions for the MD Software – up to three (3) versions behind the latest version of the Software, up to Version 12 of the Software – may be traded in for an Annual Subscription for which the Annual Subscription Fee for the first two consecutive terms will be waived.

3.6.2 If Licensee desires to renew any such Annual Subscription for any subsequent Renewal Term after the expiration of the first Renewal Term, the full Annual Subscription Fee will become due and payable for any such subsequent Renewal Term.

3.6.3 All Trade-Ins are final - without the possibility of reverting to, or retrieving, any Perpetual Subscription that are traded in. 

3.6.4 If Licensee elects to Trade-In an existing Perpetual Subscription, Licensee must Trade-In all of its existing Perpetual Subscriptions at the same time, or none at all. 

ANNEX II - Network Offline Authentication 


1. Software-based License Key ("SL Key"). 

1.1 "SL Key" means a software-based, virtual license key that is used to authenticate a valid license to the Licensed Materials. 

1.2 The SL Key authentication method is available for Annual Subscription.   The SL Key method is also available for certain Perpetual Subscriptions that are Updated to the latest version of the Software; provided that the Perpetual Subscription in question is eligible for an Update under this MD Terms and that the applicable Update Fee is paid.

1.3 In ORDER FOR AN AUTHORIZED USER TO ACCESS THE LICENSED MATERIALS UNDER THE SL KEY METHOD, INTERNET CONNECTION AND FILE TRANSFER MAY BE REQUIRED IN THE FIRST INSTANCE OF INSTALLING AND ACTIVATING THE SOFTWARE ON THE FILE SERVER FROM WHICH THE LICENSED MATERIALS WILL BE ACCESSED ON THE COMPUTERS OF AUTHORIZED USERS, ON A NETWORKED BASIS.  

1.4 UNDER THE SL KEY METHOD, THE DESIGNATED LICENSED MATERIALS MAY BE INSTALLED ON AS MANY COMPUTERS OF AUTHORIZED USERS AS NECESSARY FOR LICENSEE'S INTERNAL  BUSINESS NEEDS SUBJECT TO SECTION 2.6; provided that the such computers are connected to the file server through Permitted Number of Authorized Users who may access or use the Licensed Materials concurrently at any one time shall not exceed the total number of non-expired licenses provided to Licensee under this MD Terms.  

1.5 FOR REFERENCE, CLO PROVIDES INSTRUCTIONS ON HOW TO ACTIVATE AND INSTALL LICENSES UNDER THE SL KEY METHOD ON ITS WEBSITE. AS OF THE EFFECTIVE DATE, THE LATEST INSTRUCTIONS CAN BE FOUND AT:  https://marvelousdesigner.zendesk.com/hc/en-us/articles/900002538043-Requesting-Network-Software-License-activation-First-Time-installation. 

1.6 REISSUING AN SL KEY.  IF AN SL KEY NEEDS TO BE REISSUED DUE TO NO FAULT OF CLO, CLO WILL REISSUE AN SL KEY PROVIDED THAT LICENSEE PAYS CLO THE FOLLOWING: (A) ONE HUNDRED DOLLARS PLUS (B) ONE HUNDRED DOLLARS MULTIPLIED BY THE NUMBER OF SL KEY COPIES THAT ARE BEING REISSUED (COLLECTIVELY, THE "REISSUE FEE"). IF, HOWEVER, AN SL KEY NEEDS TO BE REISSUED DUE TO THE FAULT OF CLO, CLO WILL REISSUE AN SL KEY AT NO COST TO LICENSEE.  FOR THE AVOIDANCE OF DOUBT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS MD TERMS, CLO HAS NO RESPONSIBILITY WHATSOEVER TO REISSUE AN SL KEY (UNLESS LICENSEE PAYS OF THE APPLICABLE REISSUE FEE) FOR ANY SL KEY THAT NEEDS TO BE REISSUED DUE TO A LOSS OF FILES ASSOCIATED WITH THE FILE TRANSFER PROCESS OR DUE TO ANY PROBLEM WITH THE SERVER ON WHICH THE SL KEY IS INSTALLED.   

1.7 REHOSTING. "REHOST" MEANS TO MOVE AN SL KEY FROM ONE PHYSICAL DEVICE OR VIRTUAL ENVIRONMENT TO ANOTHER. FOR ANY SL KEYS THAT WERE ISSUED TO AUTHENTICATE LICENSES FOR A VERSION OF THE SOFTWARE THAT IS NOT THE LATEST VERSION AT THE TIME OF THE REHOST REQUEST, CLO SHALL REHOST AN SL KEY UPON THE REASONABLE REQUEST OF LICENSEE, PROVIDED THAT LICENSEE PAYS CLO THE FOLLOWING: TWO HUNDRED DOLLARS PER SL KEY (THE "REHOST FEE").  IN SUCH EVENT, CLO SHALL ONLY BE RESPONSIBLE FOR REHOSTING THE SL KEY TO THE EXTENT REHOSTING IS TECHNICALLY FEASIBLE AND PERMITTED UNDER THE H2H FILE TRANSFER METHOD.  FOR ANY SL KEYS THAT WERE ISSUED TO AUTHENTICATE LICENSES FOR A VERSION OF THE SOFTWARE THAT IS THE LATEST VERSION AT THE TIME OF THE REHOST REQUEST, CLO SHALL REHOST AN SL KEY AT NO COST TO LICENSEE, UPON THE REASONABLE REQUEST OF LICENSEE. 

2. Hardware-based License Key ("Dongles")

2.1 Also known as Hardware-based License Key ("HL Key") or Hardware-Against-Software-Piracy Key ("HASP Key"), "Dongle" means a physical USB device that is used to authenticate a valid license to the Licensed Materials. 

2.2 The Dongle method of authentication is available for Perpetual Subscriptions only (which are no longer offered for sale as of November 25, 2020).

2.3 Under the Dongle method, Licensee must install the designated Licensed Materials on a single file server computer and permit access to such Licensed Materials to Authorized Users in Licensee's network, subject to the Permitted Number of concurrent Authorized Users.  Dongles are tied to a specific USER ID, but not to a specific computer.

2.4 IF A DONGLE IS DAMAGED, DESTROYED, MISPLACED, OR OTHERWISE BECOMES IMPAIRED OR UNUSABLE DUE TO NO FAULT OF CLO, CLO WILL PROVIDE A REPLACEMENT DONGLE, BUT ONLY UPON PAYMENT BY LICENSEE OF THE FOLLOWING: (A) IN THE CASE WHERE SUCH DONGLE IS DAMAGED, DESTROYED, IMPAIRED OR UNUSABLE (AND RETURNED TO CLO), THE ACTUAL REPLACEMENT COST OF SUCH DONGLE, AND (B) IN ALL OTHER CASES, THE FEE PAID BY LICENSEE FOR THE LICENSE EMBODIED IN THE REPLACED DONGLE. 

2.5 IF A REPLACED DONGLE IS SUBSEQUENTLY FOUND AND/OR IS USABLE, LICENSEE SHALL PROMPTLY SHIP THE REPLACED DONGLE BACK TO CLO. NO REFUNDS ARE PROVIDED EVEN IF A REPLACED DONGLE IS SUBSEQUENTLY FOUND. IF LICENSEE REQUESTS A REPLACEMENT DONGLE, LICENSEE IS AUTHORIZED TO USE ONLY THE REPLACEMENT DONGLE AND NOT THE REPLACED DONGLE

2.6 IN ADDITION TO ANY OTHER RIGHTS CLO MAY HAVE WITH RESPECT TO REPLACED DONGLES, ANY USE OF A REPLACED  DONGLE BY LICENSEE AFTER RECEIVING A REPLACEMENT DONGLE WILL RESULT IN THE AUTOMATIC TERMINATION OF THE CORRESPONDING LICENSE (WITHOUT REFUNDS) TO USE THE LICENSED MATERIALS.

2.7 NOTWITHSTANDING ANY OTHER PROVISION OF THIS MD TERMS, CLO HAS NO RESPONSIBILITY WHATSOEVER TO REPLACE (OR PROVIDE WHATEVER SUPPORT) FOR ANY DONGLES THAT WERE ISSUED TO AUTHENTICATE LICENSES FOR A VERSION OF THE SOFTWARE THAT IS MORE THAN THREE (3) VERSIONS BEHIND THE LATEST VERSION OF THE SOFTWARE WE MAKE AVAILABLE ONLINE. 

3. SL Key and Dongle Methods Require Separate Networks.  The SL Key authentication method does not operate on the same network and file server as the Dongle authentication method.  Accordingly, Annual Subscription Network Offline Licenses (under the SL Key method) and Perpetual Network Offline Licenses (under the Dongle method) cannot be accessed by Licensee's Authorized Users from the same network or file server—unless the authentication method for any such Perpetual Network Offline Licenses are switched from the Dongle method to the SL Key method pursuant to the C2V-V2C File Transfer method set forth below.  

4. Key Conversion Fee.  For the avoidance of doubt, in order for Licensee to change the authentication method for any licenses from the Dongle method to the SL Key method, Licensee must pay the following: (1) one hundred dollars multiplied by the number of SL Key copies plus (2) one hundred dollars (collectively, the "Key Conversion Fee"). 

5. Customer-to-Vendor and Vendor-to-Customer File Transfer ("C2V-V2C File Transfer").  

5.1 The C2V-V2C File Transfer method can be used by Licensees who have existing Perpetual Subscriptions under the Dongle method (A) to update Licensee's account information, product type, and/or the number of licenses—all without changing Dongles themselves; or (B) to change authentication methods from the Dongle method to the SL Key method--in which case (i) Licensee must pay the Key Conversion Fee,  (ii) the Dongle must be returned to CLO, (iii) such Dongle shall then be treated in the same manner as a "Replaced Dongle" as that term is used elsewhere in this MD Terms, and (iv) the SL Key method shall be treated as the "Replacement Dongle" as that term is used elsewhere in this MD Terms. 

5.2 Under the C2V-V2C File Transfer method, Licensee is able to manually activate the Software after the applicable files are transferred between Licensee and CLO under a process outlined on CLO's website.  As of the Effective Date, the latest instructions are available at https://marvelousdesigner.zendesk.com/hc/en-us/articles/360037030012-License-Key-Update-With-Dongle.  As of the Effective Date, the C2V-V2C File Transfer method is only available on Windows PCs.