PLEASE CAREFULLY READ ALL SECTIONS OF THE FOLLOWING END USER LICENSE AGREEMENT (AGREEMENT), WHICH APPLIES TO THE WEATHER TUNNEL® MOBILE SOFTWARE APPLICATION (SOFTWARE). BY DOWNLOADING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT. IF YOU DO NOT WISH TO ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE SOFTWARE.
zalicon enterprises, inc. (zalicon) hereby gives you a personal, non-exclusive license to use the software application Weather Tunnel®. This license is granted for as long as the Software is supported by zalicon (Term). Any new versions of the Software are also covered by the Agreement.
You may not:
Your use of the Software is strictly your choice. The software can be uninstalled at any time.
TERMINATION AND MODIFICATION.
zalicon may, in its sole discretion, terminate the Agreement without cause at any time. Your license to the Software and zalicon's obligations under this Agreement will automatically terminate if you fail to comply with any term of this Agreement. The indemnification obligations contained in the INDEMNIFICATION sections shall survive termination of this Agreement for one (1) year.
zalicon warrants to you during the Term that the Software will achieve in all material respects the functionality described in the User Guides applicable to the products acquired by Customer and that such functionality will be maintained in all material respects in subsequent upgrades to the Software. zalicon does not warrant that the Software will be error-free. Customer's sole and exclusive remedy for zalicon's breach of this warranty shall be that zalicon shall be required to use commercially reasonable efforts to modify the Software to achieve in all material respects the functionality described in the User Guides and other related documentation and if zalicon is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of any license fees paid for its use of the Software for the terminated portion of the Term. zalicon shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to email@example.com.
zalicon warrants that it is the sole owner and has full power and authority to grant the license and use of the Software and other rights granted by the Agreement to you with respect to the Software and that neither the performance by you in its utilization of the Software, nor the license of and authorized use by you of the Software as described herein will in any way constitute an infringement or other violation of any copyright or trademark of any third party.
zalicon warrants that the Software shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components.
ZALICON DOES NOT REPRESENT THAT YOUR USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE SOFTWARE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SOFTWARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY ZALICON. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED ABOVE, THE SOFTWARE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SOFTWARE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.
LIMITATIONS OF LIABILITY.
YOU AGREES THAT THE CONSIDERATION WHICH ZALICON MAY CHARGE HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY ZALICON OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. Except with regard to amounts due under this Agreement, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Software, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of original price of the Software. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the license of the Software and that, were zalicon to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY'S INDEMNITY OBLIGATIONS SET FORTH IN THE INDEMNIFICATION SECTION BELOW.
zalicon will indemnify, defend and hold you harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against you which arise out of or result from the infringement of any copyright, trademark, or misappropriation of a trade secret relating to the Software; provided that you (a) promptly give zalicon notice of the claim, suit, action, or proceeding; (b) give zalicon sole control of the defense and related settlement negotiations; and (c) provide zalicon with all reasonably available information and assistance necessary to perform zalicon's obligations under this paragraph. If the Software is held to infringe, zalicon will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect you against such claim without cost to Customer; or (b) to replace the Software with a non-infringing Software. Provided that zalicon complies with this Section, you shall be entitled as its sole and exclusive remedy to terminate the Agreement.
If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired.
Last Updated June 1, 2012Copyright © 2012 zalicon enterprises, inc.