Original Equipment Manufacturer (OEM) Font Licence Agreement
Last updated 4 April 2022
The Terms of this End User Licence Agreement (Agreement) will apply between Klim Type Foundry (Klim) and You (You, Your, Yours) if You purchase a licence or licences to use Klim’s Font Software (Fonts).
You are purchasing from Klim a suite of digital typeface software, the Fonts, and the rights to use the Fonts for OEM purposes. When You purchase a Font, You are purchasing the right to use that Font under a particular set of conditions. These conditions range from, for example, the specific Operating System the Font may be embedded in. It is important to read and understand this Agreement because it defines Your rights, the acceptable uses of the Fonts, and the rights Klim reserves. If You believe Your usage or need is not addressed, or if You are unsure of the meaning of any term or condition, please ask Klim before making a purchase.
Klim agrees to grant You a licence or licences to use the Fonts on the terms of this Agreement and provided that You comply with these terms, in perpetuity. This licence is not exclusive to You and can be revoked by Klim.
The licence granted to You in this Agreement relates only to Your Operating System, as named on Your Sales Receipt. You may not supply the Fonts to any other person, entity, organisation or client without the express permission of Klim.
If You are a parent company purchasing the Fonts for a wholly or partly owned subsidiary, You must ensure Your subsidiary complies with the terms and conditions of this Agreement. Any breach of this Agreement by Your subsidiary will be deemed a breach by You. If You are a subsidiary of a parent company, this licence does not allow transfer of this licence to Your parent company, Your parent company must purchase an independent licence to use the Fonts.
“Font”, “Fonts” or “Font Software” have identical meanings in this Agreement. They are defined as the designs of the Fonts and the Software identified on Your Sales Receipt that produces a typeface design(s) together with any other artworks that may be associated with the Font.
“Klim” is the Klim Type Foundry, the trading brand of The Letterheads Limited.
“Sales Receipt” means the electronic document You receive as confirmation of the Fonts purchased.
“You”, “Your” and the “End User” means the licensee of the OEM Fonts and the party that owns the Operating System. An End User cannot be a distributor, reseller, dealer, sub-licensee, server administrator, or other wholesale buyer of software. Klim’s OEM Fonts and software products may not be distributed and/or sold to third parties without Klim’s prior written consent. If You do not manufacture or own the hardware/equipment on which the Operating System will be executed, You may direct an authorised third party to use the Fonts in accordance with this licence on Your behalf, provided You do so within clause 3b. of this Agreement.
“Device” means a single unit of hardware that You own or have the rights to produce or procure.
“OEM Fonts” are typeface Font Software that has been created, optimised, translated or otherwise specially modified for embedding within Your Operating System for viewing text on a hardware Device.
“Operating System” means the software that enables a hardware Device to run software applications and essential periphery services to provide a range of functions on the hardware Device.
“Original Equipment Manufacturer” (OEM) means any entity that produces parts that are used in a final product that is owned, marketed or branded by You or another entity.
There is no expiry to this Agreement or its terms, You may use the Fonts in perpetuity with no further licensing costs. There is no geographic limitation to this Agreement, You may use the Fonts worldwide.
3.Permitted Uses and Restrictions
Allowed Operating System
The OEM Fonts may be embedded in the Operating System, specified on Your Sales Receipt. You may use the Fonts for displaying text on a hardware Device as a function or output of the Operating System. The Fonts are only to be displayed on the Device. If You wish to use the Fonts for an additional purpose, You will need a separate licence Agreement.
Font File Protection
You agree to use reasonable measures to protect the Fonts from access and use by unlicensed or unauthorised third parties. If You discover or are made aware of any unauthorised access and/or use by an unlicensed or unauthorised third party, You agree to notify Klim as soon as is reasonable.
You may make a reasonable number of copies of the Fonts for back-up purposes only. Copies must contain the same documentation, copyright, trademark, and other proprietary notices that appear on, in or with the Fonts. You must keep back-up copies secure and must take all reasonable steps to prevent any third-party access to them. You will indemnify Klim for all costs, damages or losses incurred as a result of Your failure to comply with this clause. If You discover or are made aware of any unauthorised access and/or use of the back-up copies by an unlicensed third party, You agree to notify Klim as soon as is reasonable.
No Modifications, No Embedding
You may not engage third parties to create modifications, derivative works or extensions to any font associated with the Fonts. You are also not permitted to modify, adapt, translate, reformat, reverse engineer, decompile, disassemble, alter or attempt to discover the computer code of the Fonts or the designs embodied therein. The embedding or inclusion of Klim Fonts, or the designs forming the Fonts, is permitted in the Operating System specified on Your Sales Receipt only. You may not embed or include the Fonts in any other form whatsoever. A separate licence and accompanying software are each available from Klim for this purpose.
Named Usage Only
The use of the OEM Fonts for any other Operating System that is not named on Your Sales Receipt or for any uses not expressly permitted in this Agreement is prohibited. If You wish to use the Fonts in another Operating System, You must secure a separate licence and/or a licence extension by contacting Klim directly.
You must not exceed the number of Devices shown on Your Sales Receipt. If you wish to use the Fonts on more devices You must purchase a licence upgrade to reflect the increase in Your consumption of the Fonts.
4.Intellectual Property and Title
You expressly acknowledge that the Fonts, the designs embodied therein, the trade names and/or trademarks and copyrights associated therewith are each the exclusive property of Klim and that Klim has all the necessary rights and titles to license the Fonts to You. All rights not expressly granted under this licence are reserved to Klim.
You acknowledge that the Fonts and the design of the Fonts embodied therein are owned by Klim and the Fonts’ structure, organisation and code are the valuable trade secrets of Klim. You acknowledge that the Fonts are, among other means, protected under New Zealand trademark and/or copyright law, by the trademark and/or copyright and design laws of other nations, and by international treaties. You must not modify such trademarks in any way without the prior written consent of Klim.
This clause does not apply to any original works created by You using the Fonts that could be used as, or for, a trademark.
At Klim’s request, You agree to provide an audit to confirm the Fonts You are consuming match Your Sales Receipt. Klim will give You at least 5 business days’ notice to complete the audit.
5.Warranties and Representations
Klim represents and warrants that the Fonts will perform substantially in accordance with the representations made herein. To make a warranty claim, You must notify the source from which You obtained the Fonts together with a copy of Your Sales Receipt. If the Font does not perform substantially in accordance with the representations, the entire and exclusive liability and remedy shall be limited to the replacement of the Font Software or the refund of the licence fee You paid for the Fonts, as an authorised officer of Klim may elect. Klim and its suppliers do not and cannot warrant the performance or results You may obtain by using the Fonts. It is Your responsibility to ensure that the Fonts are fit for Your purpose.
Klim expressly disclaims all warranties, express and implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Klim does not warrant that the operation of the Fonts will be unimpeded, uninterrupted or error-free, or that the Fonts are without defects. Without limiting the foregoing under no circumstances shall Klim be liable to You or any other party, whether in contract or tort (including negligence) or otherwise, for any indirect losses, special, consequential, or incidental damages, including lost profits, lost savings, loss of data, or business interruption as a result of the use of or the inability to use the Fonts even if notified in advance of such possibility.
Klim warrants that the Fonts furnished by Klim do not infringe upon or violate any patent, copyright, trademark, trade secret, or any other proprietary right of a third party.
If You are a business or in trade and the Fonts are acquired for use in business or in trade, You agree to contract out of the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986, to the effect that those provisions shall have no effect between Klim and You under this Agreement.
Each party must indemnify and hold harmless the other, and their officers, directors, employees and agents, against any and all costs, expenses, liabilities, injuries, losses, damages, claims, demands and judgments that either party incurs as a consequence of either party’s breach of this Agreement.
This indemnification obligation survives termination of this Agreement.
7.Transfer of Licensed Operating System
You may not transfer the rights to use the OEM Fonts to a different Operating System. Transfer of this licence to a third party is not permitted.
Without liability to You, this Agreement automatically terminates if: (a) You, or any authorised person or party, breaches any terms of this Agreement and do not remedy the breach within 30 days’ of Klim notifying You of a breach; or (b) You become bankrupt or are put into liquidation, or have a receiver or statutory manager appointed over any of Your assets, or become insolvent or cease to carry on Your business, or make any composition or arrangement with Your creditors.
Upon termination of this Agreement under 8a., all rights granted to You under this Agreement will terminate, and You agree to immediately discontinue using the Fonts, delete all copies of the Fonts and provide Klim with confirmation no copy or copies remain in Your possession or control, or in the possession or control of any authorised person or party.
Klim will be entitled to seek any and all remedies under law or equity, without limitation, including injunctive relief without the obligation of posting security or bond.
You may assign or transfer all of Your rights and obligations under this Agreement to any person (the ‘transferee’), provided that You obtain Klim’s prior written consent and the transferee accepts and agrees to be bound by all the terms of this Agreement.
10.Transfer of Licence
If Your organisation merges, is acquired or subsumed by another legal entity, You must make Klim aware of this within a reasonable period of time, but no less than 10 business days before the transaction. If the new entity anticipates a wider use than the original Agreement, Klim will require the new entity to sign an addendum to the existing Agreement to confirm transfer of the licence and pay any related increase in the licence fee.
Any dispute or difference arising out of or in connection with this Agreement will be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. The arbitration shall be by one arbitrator to be agreed upon by both You and Klim and if both parties cannot agree within twenty-one (21) days from the date upon which the dispute arises then an arbitrator will be appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc.
12.Choice of Law and Severability
You agree that this Agreement between Klim and You was formed in Wellington, New Zealand, and any cause of action arising from it, arises in Wellington, New Zealand and will be governed by and construed in accordance with the laws of New Zealand and within the exclusive jurisdiction of the New Zealand courts.
Klim reserves the right to amend or modify this Agreement at any time and without prior notification. Any modifications will preserve the original permitted uses of this Agreement. Modifications may account for changes in technology that would otherwise impair or render obsolete provisions in this Agreement. Modifications shall not be applied retroactively and any original intended use cases will not be void as a result of any modifications. Klim will make such amended terms available at klim.co.nz. If You do not agree to the modified terms, Your continued use of the Fonts could be in breach of the Agreement.
This Agreement embodies the entire understanding between Klim and You and supersedes all prior arrangements or understandings. If an applicable Court declares any part of it to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.