ALL WEATHER, INC. SOFTWARE END USER LICENSE AGREEMENT

Transcription

1 ALL WEATHER, INC. SOFTWARE END USER LICENSE AGREEMENT THIS SOFTWARE END USER LICENSE AGREEMENT (THIS AGREEMENT ) IS DATED FOR REFERENCE PURPOSES ONLY AS OF MARCH 26, 2009, AND IS BY AND BETWEEN ALL WEATHER, INC., A DELAWARE CORPORATION, AND LICENSEE. IMPORTANT: THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN LICENSEE AND ALL WEATHER, INC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING THE DOWNLOAD OR INSTALL NOW BUTTON AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL OR USE THE SOFTWARE. 1) Definitions a) "Authorized Operating Systems" means versions of the following operating systems: i) Microsoft Windows operating systems including Windows 95, 98, 2000, NT, ME, XP Home, XP Professional, and XP Tablet PC Edition, but specifically excluding Windows XP Embedded, Windows XP Media Center Edition, and successors; ii) Linux operating systems, but specifically excluding any embedded version of Linux b) "All Weather, Inc." means All Weather, Inc., a Delaware corporation and its affiliates, subsidiaries and licensors, if any. c) "Software" means only the StormFront, AWI Engine and third party software programs, in each case, supplied by All Weather, Inc. therewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and all updates or upgrades of the above that are provided to Licensee. d) For the avoidance of doubt, no embedded or device versions of the above operating systems, or any other operating systems, are included as Authorized Operating Systems. 2) License Grants a) All Weather, Inc. hereby grants to Licensee the revocable, personal, non-exclusive and nontransferable right to install and activate the Software solely for Licensee s use in its own business in strict conformance with the terms and conditions of this Agreement. Licensee may install and use the Software on a single desktop or laptop computer that runs an Authorized Operating System. A license for the Software may not be shared, installed or used concurrently on different computers. Page 1

2 b) Licensee agrees that All Weather, Inc. may audit Licensee s use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by Licensee other than in full compliance with the terms of this Agreement, Licensee shall reimburse All Weather, Inc. for all reasonable expenses related to such audit in addition to any other liabilities Licensee may incur as a result of such noncompliance. 3) License Restrictions a) Licensee shall not use the Software on any non-pc product or any embedded or device versions of the above operating systems, including, but not limited to, (A) mobile devices, set top boxes (STB), handhelds, phones, web pads, tablets and Tablet PCs that are not running Windows XP Tablet PC Edition, game consoles, TVs, DVD players, media centers (including Windows XP Media Center Edition and its successors), electronic billboards or other digital signage, internet appliances or other internet-connected devices, PDAs, medical devices, ATMs, telematic devices, gaming machines, home automation systems, kiosks, remote control devices, or any other consumer electronics device, (B) operator-based mobile, cable, satellite, or television systems, (C) other closed system devices, or (D) any operating system that is not an Authorized Operating System. b) Licensee shall not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network. c) Licensee shall not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. d) Licensee shall not sell, rent, lease, or sublicense the Software. e) Licensee shall not modify the Software or create derivative works based upon the Software. f) Licensee shall not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. g) In the event that Licensee fails to comply with this Agreement, All Weather, Inc. may terminate the license and Licensee must immediately return to All Weather, Inc. all copies of the Software and all accompanying items (with all other rights of both parties and all other provisions of this Agreement surviving any such termination). h) Licensee shall not use the Software to develop any software or other technology having the same primary function as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the Software. Page 2

3 4) Ownership The foregoing license gives Licensee limited license to use the Software. All Weather, Inc. and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software and all copies thereof. All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by All Weather, Inc. and its suppliers. 5) WARRANTY DISCLAIMER ALL WEATHER, INC. PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE SOFTWARE. ALL WEATHER, INC. AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. ALL WEATHER, INC. DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON LICENSEE UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AND LIFE SUPPORT OR WEAPONS SYSTEMS. ALL WEATHER, INC. SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ALL WEATHER, INC., ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. ALL WEATHER, INC. SHALL HAVE NO RESPONSIBILITY IF THE SOFTWARE HAS BEEN ALTERED IN ANY WAY, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE SOFTWARE WITH OTHER THAN A RECOMMENDED HARDWARE CONFIGURATION, PLATFORM OR OPERATING SYSTEM. 6) LIMITATION OF LIABILITY NEITHER ALL WEATHER, INC. NOR ITS SUPPLIERS SHALL BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, Page 3

4 COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ALL WEATHER, INC. OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ALL WEATHER, INC.'S TOTAL LIABILITY TO LICENSEE FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $10 OR THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT. 7) Basis of Bargain The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of this Agreement between All Weather, Inc. and Licensee. All Weather, Inc. would not be able to provide the Software on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of All Weather, Inc.'s licensors and successors and assigns. 8) U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the US Government is subject to restrictions as set forth in this Agreement and as provided in DFARS (a) and (a) (1995), DFARS (c)(1)(ii)(oct 1988), FAR (a)(1995), FAR , or FAR , as applicable. Manufacturer: All Weather, Inc., 1165 National Drive, Sacramento, CA ) (Outside of the USA) Consumer End Users Only a) The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. b) The limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to Licensee only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where Licensee is located. 10) Third Party Software Page 4

5 a) The Software contains third party software, which requires notices and/or additional terms and conditions. Such third party software includes, but is not necessarily limited to, Apache Version 2.0, Goodies-Looks and calendar. Such required third party software notices and/or additional terms and conditions are located at and are made a part of and incorporated by reference into this Agreement. By entering into this Agreement, Licensee is also accepting and agreeing to be bound by the additional terms and conditions set forth at 11) Confidential Information a) Licensee agrees that the Software contains proprietary information, including trade secrets, know-how and confidential information that are the exclusive property of All Weather, Inc. During the period this Agreement is in effect and at all times after its termination, Licensee and its employees and agents shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by this Agreement. Licensee shall not disclose any such proprietary information concerning the Software to persons not an employee of Licensee without the prior written consent of All Weather, Inc. 12) General a) The internal laws of the State of California shall govern this Agreement, without giving effect to principles of conflict of laws. Licensee hereby consents to the exclusive jurisdiction and venue of the state courts sitting in Sacramento County, California or the federal courts in the Northern District of California to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. Licensee agree that any varying or additional terms contained in any purchase order or other written notification or document issued by Licensee in relation to the Software licensed hereunder shall be of no effect. The failure or delay of All Weather, Inc. to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. No All Weather, Inc. dealer, agent or employee is authorized to make any amendment to this Agreement. Licensee may not assign or sublicense, without the prior written consent of All Weather, Inc., which may be withheld in its sole and absolute discretion. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, then that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Page 5

6 All questions concerning this Agreement shall be directed to: All Weather, Inc., 1165 National Drive, Sacramento, CA 95834, Attention: General Counsel. All Weather, Inc. and other trademarks contained in the Software are trademarks or registered trademarks of All Weather, Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. Licensee may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize Licensee to use All Weather, Inc.'s or its licensors' names or any of their respective trademarks. Page 6