LEAPFROG ENTERPRISES, INC. LICENSE AGREEMENT FOR SOFTWARE DOWNLOADS
Last Updated: September 22, 2010
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND LEAPFROG ENTERPRISES, INC. ("LEAPFROG") STATING THE TERMS THAT GOVERN YOUR USE OF SOFTWARE DOWNLOADED FROM LEAPFROG WEBSITES FOR USE ON LEAPFROG PRODUCTS OR IN CONNECTION WITH THE LEAPFROG CONNECT SOFTWARE APPLICATION ("SOFTWARE DOWNLOADS"). "SOFTWARE DOWNLOADS" INCLUDES, BUT IS NOT LIMITED TO, AUDIO FILES, GAME FILES, LEARNING APPS, E-BOOKS, VIDEOS, DEMO GAMES, AND SKILL SELECTOR FILES. THIS AGREEMENT CONSTITUTES THE "LICENSE AGREEMENT" BETWEEN YOU AND LEAPFROG REGARDING SOFTWARE DOWNLOADS. BY DOWNLOADING OR USING A SOFTWARE DOWNLOAD 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 SOFTWARE DOWNLOADS. YOUR RIGHT TO USE THE SOFTWARE DOWNLOADS IS CONDITIONAL UPON YOUR AGREEMENT TO THESE TERMS, AND LEAPFROG IS NOT WILLING TO ENTER INTO THIS AGREEMENT IF YOU ARE NOT WILLING TO ACCEPT SUCH TERMS. IF YOU ARE UNDER THE AGE OF 18 OR ARE OTHERWISE CONSIDERED A MINOR IN YOUR JURISDICTION, YOU SHOULD REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN (COLLECTIVELY, "PARENT") AND MAKE SURE THAT YOUR PARENT UNDERSTANDS AND AGREES ON YOUR BEHALF TO THESE TERMS AND CONDITIONS.
WHEREVER THIS AGREEMENT REFERS TO "YOU" OR "YOUR," IT IS MEANT TO INCLUDE BOTH PARENT AND CHILDREN USERS, EXCEPT WHERE A CHILD IS NOT OF SUFFICIENT LEGAL AGE TO ENTER INTO A BINDING CONTRACT (SUCH AS AN E-COMMERCE TRANSACTION) OR PROVIDE ANY REQUIRED CONSENTS (SUCH AS CONSENT TO DATA COLLECTION, PROCESSING, OR TRANSFERS), IN WHICH CASE THE PARENT OF SUCH CHILD HEREBY ACKNOWLEDGES AND AGREES HE/SHE IS ACTING ON THE CHILD'S BEHALF TO EFFECTUATE SUCH CONTRACTS OR CONSENTS AND IS FULLY LIABLE FOR THE ACTIONS OR INACTIONS OF SUCH CHILD WITH RESPECT TO THE USE OF THE LEAPFROG SERVICES.
- OWNERSHIP. The Software Download and Documentation (including all content contained within the Software Download) are owned by LeapFrog, or its licensors, and are protected by United States and international copyright and other intellectual property laws. The Software Download may only be used by you in accordance with this Agreement. The Software Download and Documentation are licensed, not sold. Except as specifically set forth herein, LeapFrog and its licensors retain all right, title and interest, including all intellectual property rights, in and to the Software Download and Documentation.
- LICENSE TERMS. LeapFrog grants to you, subject to the terms, conditions and limitations further defined in this Agreement, a non-exclusive, non-sublicensable, non-transferable license to (i) install one (1) copy of the Software Download on a LeapFrog product for non-commercial use, and to (ii) use the Documentation in connection with such use of the Software Download. In the case of a download for LeapFrog's TAG™ Reader, the Software Download is licensed solely for use with authorized copies of Tag books and other content manufactured by or under license from LeapFrog. Notwithstanding the foregoing, in the case of a download of a Leaplet learning application, you may install one (1) copy of the downloaded Leaplet learning application on up to two (2) Leapster Explorer devices where both Leapster Explorer devices are registered to the same household. Any modifications, upgrades, error corrections, or other updates to the Software Download provided by LeapFrog to you shall be deemed part of the Software Download and use thereof shall be governed by the terms and conditions of this Agreement, unless the parties have entered into a separate, written agreement governing such modifications, upgrades, error corrections, or other updates. The Software Download may contain open source or other third party software that requires LeapFrog to make available to you certain notices and code as well as providing you with license terms governing your rights to any such open source code. You agree that LeapFrog may provide you with all such notices, code and license terms at the website http://www.leapfrog.com/en/corplinks/legal.html.
- 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 Software Downloads either through the LeapFrog Services or some other means and thus may modify, with or without your knowledge, Software Downloads that you have already installed on your computer. These Updates may include changes or improvements to the Digital Rights Management (DRM) technology or other similar security system used by LeapFrog (if any) to protect against the unauthorized copying of Software Downloads. You agree and consent to the automatic installation or application of these Updates and to only use the most updated version of Software Downloads provided to you by LeapFrog.
- RESTRICTIONS ON REVERSE ENGINEERING AND SECURITY. For purposes of protecting trade secrets in Software Downloads, you may not and may not authorize others to reverse engineer, decompile, disassemble, translate or attempt to learn the source code of a Software Download except as such activities are expressly permitted under applicable law. If European Community law is applicable, the foregoing sentence is limited so that it prohibit such activity only to the maximum extent such activity may be prohibited without violating the EC Directive on the Legal Protection of Computer Programs. Notwithstanding the foregoing, prior to any such legally excused decompiling, disassembly or reverse engineering of the Software, you must first issue a written request to LeapFrog for information or assistance and you shall refrain from decompiling, disassembly, or otherwise reverse engineering any of the Software unless LeapFrog cannot, or fails, to comply with such request within a commercially reasonable period of time. You may not copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver or otherwise transfer a Software Download. You may not remove from a Software Download, or alter or add, any copyright, trademarks, trade names, logos, notices or markings. As indicated above, LeapFrog may implement a DRM or other similar security system that contains measures designed to prevent unauthorized copying of Software Downloads, including, but not limited to deletion of unauthorized copies of Software Downloads from your LeapFrog products. You agree not to violate, tamper with or circumvent any such security system or measures.
- TERM AND TERMINATION. This Agreement and all licenses set forth herein are effective upon your acceptance of the terms contained herein and full payment of all amounts owed for the Software Download and shall continue in effect until terminated as set forth herein. You may terminate this Agreement with respect to a Software Download, excluding any un-fulfilled payment obligations, at any time by destroying all copies of such Software Download. If you fail to comply with the provisions of this Agreement, then LeapFrog may immediately terminate this Agreement and all licenses hereunder with or without notice to you. Upon termination of this Agreement, you agree to destroy all copies, including the original, of all Software Downloads (in any form including any modified versions) and the Documentation.
- LIMITED WARRANTY. LeapFrog warrants to you – subject to your compliance with the terms herein – that for a period of ninety (90) days from the date of download of the Software Download, the Software Download will substantially conform to LeapFrog's published specifications for the Software Download. Your sole and exclusive remedy under the foregoing warranty shall be for LeapFrog, at its choice, to use commercially reasonable efforts to correct any substantial non-conformity of the Software Download reported to LeapFrog in writing within the warranty period and/or provide a replacement copy of the Software Download. The foregoing warranty shall not apply to any non-conformity that is caused by (i) the use or operation of the Software Download with an application or in an environment other than that intended or recommended by LeapFrog, (ii) modifications to the Software Download not made by LeapFrog or (iii) third party hardware or software, whether provided by LeapFrog or any third party. LEAPFROG MAKES NO WARRANTIES THAT THE SOFTWARE DOWNLOAD IS ERRORFREE OR IS SUITABLE FOR YOUR PURPOSES. LEAPFROG MAKES NO WARRANTIES OTHER THAN THOSE SET FORTH ABOVE, AND HEREBY DISCLAIMS ALL OTHER, WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE DOWNLOAD OR DOCUMENTATION, 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.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL LEAPFROG OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, USE OF DATA, COST OF REPLACEMENT GOODS OR HARDWARE, OR OTHER INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE DOWNLOAD OR DOCUMENTATION, EVEN IF LEAPFROG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. YOU AGREE THAT IN NO EVENT WILL LEAPFROG'S AGGREGATE LIABILITY HEREUNDER OR RELATED TO YOUR USE OF THE SOFTWARE DOWNLOAD OR DOCUMENTATION EXCEED THE AMOUNT PAID FOR THE SOFTWARE DOWNLOAD. Some jurisdictions do not allow the exclusions and limitations of certain types of damages, so some of the foregoing may not apply.
- ALLOCATION OF RISK. YOU ACKNOWLEDGE THAT: (I) THE LIMITED WARRANTIES, LIMITED REMEDIES AND LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT ARE A FUNDAMENTAL PART OF THE BASIS OF LEAPFROG'S BARGAIN HEREUNDER WITHOUT WHICH LEAPFROG WOULD NOT ENTER INTO THIS AGREEMENT, AND (II) THE FEES PAID FOR SUCH ITEMS REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT.
- COMPLIANCE WITH LAWS. You agree to use the Software Download and Documentation 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 Download or any Documentation.
- U.S. GOVERNMENT END USERS. The Software Download 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 Download with only the rights set forth therein.
- VENUE. 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.
- MISCELLANEOUS. This Agreement is governed by the laws of the State of California, without reference to its principles of conflicts of laws. 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. This Agreement is the complete, final and exclusive statement of the agreement between the parties with respect to the subject matter hereof, 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 hereunder shall operate as a waiver thereof or affect any other right or remedy. Waiver of a breach shall not waive the right to enforce any subsequent breach under this Agreement.