LEAPFROG ENTERPRISES, INC. SOFTWARE LICENSE AGREEMENT

Last Updated: February 25, 2013

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY.  BY DOWNLOADING OR OTHERWISE USING OR INSTALLING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OR DOWNLOAD THE SOFTWARE AND CONTACT LEAPFROG ENTERPRISES, INC. (“LEAPFROG”) ABOUT REFUND PROCEDURES.   

As used in this Agreement, the term, "Software", includes, but is not limited to, audio files, game files, images, learning apps, application software, object code, executable code, e-books, videos, demo games, skill selector files and any accompanying documentation.  

1.         LICENSE TERMS. LeapFrog grants to you a non-exclusive, non-sublicensable, non-transferable license to (a) install the Software on a LeapFrog product for non-commercial use; and (b) use the documentation in connection with such use of the Software. Notwithstanding the preceding sentence, in the case of a download of an application purchased from the LeapFrog App Center, you may install one (1) copy of the downloaded application on up to three (3) LeapFrog compatible devices so long as all of the devices are registered to the same household. Any modifications, upgrades, error corrections or other updates to the Software provided to you by LeapFrog shall be deemed part of the Software.

2.         REVISIONS AND UPDATES. You agree that LeapFrog may, but is not required to, provide modifications, upgrades, error corrections or other updates, including automatically-installed modifications, upgrades, error corrections or updates (collectively, "Updates") to the Software, and thus may modify, with or without your knowledge, the Software that you have already installed. These Updates may include changes or improvements to the Digital Rights Management (“DRM”) technology or other similar security system used by LeapFrog to protect against the unauthorized copying of the Software. You agree and consent to the automatic installation or application of these Updates and to only use the most updated version of the Software provided to you by LeapFrog.

3.         SOFTWARE RESTRICTIONS. You may not and may not authorize others to reverse engineer, decompile, disassemble, translate or attempt to learn the source code of the Software. You may not copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver or otherwise transfer Software. You may not remove, alter or add any copyright, trademarks, trade names, logos, notices, or markings contained on the Software.  You agree not to violate, tamper with or circumvent any DRM, security systems or measures. If the Software provides you with the ability to create, modify, print, send and/or save images or video clips containing copyrighted characters or other copyrighted material, this Agreement allows you to use such images or video only for your own personal use and not for any commercial purpose whatsoever. You may not sell or publicly display such images or video or any material containing such images or video, including, but not limited to, in connection with any advertising or promotional materials, whether or not for profit. You agree further that you will preserve all copyright notices and trademark notices that the Software embeds within the display of all images and video.

4.         OWNERSHIP. The Software is owned by LeapFrog or its licensors and is protected by United States and international copyright and other intellectual property laws. The Software may only be used by you in accordance with this Agreement. The Software is licensed to you for your use, not sold to you.  Except as specifically set forth in this Agreement, LeapFrog and its licensors retain all right, title and interest, including all intellectual property rights, in and to the Software.  The Software may contain open source software that requires LeapFrog to make available to you certain notices and/or code as well as providing you with license terms governing your rights to any such open source code. For more information on open source code, see http://www.leapfrog.com/en-us/legal/open-source.html.

5.         TERMINATION. This Agreement is effective until terminated by either party. You may terminate this Agreement at any time by writing to [insert email address]. If you fail to comply with the provisions of this Agreement, then LeapFrog may immediately terminate this Agreement and all included licenses with or without notice to you. Upon termination of this Agreement, you agree to delete or destroy all copies, including the original, of all Software and related documentation.

6.         LIMITED WARRANTY. LeapFrog warrants the media on which the Software is delivered to you to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase, as evidenced by proof of purchase. Any nonconformity must be reported to LeapFrog in writing within the warranty period. Your sole and exclusive remedy under the foregoing warranty shall be for LeapFrog, at its option, to provide a replacement copy of the Software or refund the purchase price.  LEAPFROG DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT IT IS SUITABLE FOR YOUR PURPOSES.  LEAPFROG MAKES NO WARRANTIES OTHER THAN THOSE SET FORTH ABOVE, AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LEAPFROG, ITS RESELLERS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusions and limitations may not apply to you.  In such event, the scope and duration of any such warranty shall be the minimum required under applicable law.

7.         LIMITATION OF LIABILITY. IN NO EVENT SHALL LEAPFROG OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF DATA OR OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE, EVEN IF LEAPFROG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT IN NO EVENT WILL LEAPFROG'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID FOR THE SOFTWARE. Some jurisdictions do not allow the exclusions and limitations of certain types of damages, so some of the foregoing may not apply to you.

8.         COMPLIANCE WITH LAWS. You agree to use the Software in compliance with all applicable federal, international, state, and local laws and regulations including, without limitation, all U.S. federal laws governing the export or re-export of the Software.

9.         U.S. GOVERNMENT END USERS. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only the rights set forth in such regulations.

10.       LAW AND VENUE. This Agreement is governed by the laws of the State of California, without reference to its principles of conflicts of laws. You expressly agree that exclusive jurisdiction and venue for any claim or dispute with Leapfrog or relating in any way to your use of the Software resides in the state or federal courts of Alameda County, California. You hereby irrevocably consent to the personal and exclusive jurisdiction and venue of these courts.

11.       SEVERABILITY. If any provision of this Agreement shall be unlawful, void or unenforceable in your jurisdiction, then that provision shall be deemed severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions of this Agreement.

12.       MISCELLANEOUS.This Agreement is the complete, final and exclusive statement of the agreement between you and LeapFrog with respect to the Software and supersedes any proposal or prior or contemporaneous agreement or communications between us, whether oral or written, relating to the subject matter hereof. This Agreement may only be modified in a writing signed by both parties. No failure or delay, in whole or in part, on the part of either party to exercise any right or remedy available under this Agreement shall operate as a waiver of such right or remedy, or affect any other right or remedy. Waiver of a breach shall not waive the right to enforce any subsequent breach under this Agreement.