End User Software License Agreement
IMPORTANT: READ THIS SOFTWARE END USER LICENSE CAREFULLY BEFORE POWERING UP YOUR CHUMBY PRODUCT FOR THE FIRST TIME.
This chumby Software License Agreement (this "Agreement") is a legal agreement between you, either an individual or a single legal entity ("you" or "Licensee"), and chumby industries, inc. ("chumby", "we," or "us"), governing your use of the chumby Software installed on the chumby Product. You must accept the terms of this Agreement before using the chumby Product.
By powering up your chumby Product for the very first time or by otherwise using the Software, or by keeping (and not returning) the chumby Product past the date thirty (30) days after the original purchase date, you are indicating that you have read and understood, and agree to be bound by, the terms of this Agreement. If you are an individual working for a company, you represent and warrant that you have all necessary authority to bind your company to the terms and conditions of this Agreement.
If you do not agree to the terms and conditions of the Agreement, you are not granted any rights whatsoever in the Software. If you are not willing to be bound by these terms and conditions, you should not use the chumby Product and immediately return it to chumby. In that case, chumby will refund the purchase price you have paid to chumby for the chumby Product; provided that you must return the chumby Product in accordance with chumby's return policy. See www.chumby.com/corporate/returns for details.
The term of this Agreement will begin when you power up the chumby Product or use the Software, or any part of it in any other way, and will continue thereafter unless (a) the parties mutually agree on the termination of the Agreement, or (b) you breach any provision of this Agreement in which case the Agreement shall be terminated automatically and immediately without further notice.
THIS IS A LICENSE AND NOT A SALE
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
As used in this Agreement:
"chumby Product" or "Product" means the chumby hardware product distributed by chumby, including the housing, fabric, or other material that encases the electronics.
"Intellectual Property Rights" means all present and future worldwide copyrights, trade secrets, patent rights, moral rights, and other proprietary rights throughout the world, excluding trademark rights.
"chumby Software" or "Software" means any software, including but not limited to the Adobe® Flash® Lite™ Software, in object code form that is incorporated in and runs on the chumby Product as originally manufactured and delivered.
2. Licenses; Restrictions; Ownership
2.1 License Grant. Subject to the limitations in this Agreement, chumby grants a worldwide, nonexclusive, perpetual, royalty free right and license, without right to sublicense, to run the Software only on and as incorporated in the Product.
2.2 Limitations and Licensee Obligations. You shall not (i) copy or distribute, sublicense, lease, rent or otherwise transfer the Software to any third party except with and incorporated in the Product, and then not for value; (ii) modify, adapt, alter, translate, or create derivative works of the Software; (iii) decompile, disassemble, reverse engineer or otherwise derive source code, or attempt to derive source code, from the Software; or (iv) have any of the foregoing done for you by a third party.
2.3 Separately Licensed Code. Certain items of software included with the chumby Product are subject to separate license terms, including "free software" or "open software" licenses ("Separately Licensed Code"). Some of the Separately Licensed Code is provided by third parties, and some is provided by chumby under open source license terms. The Separately Licensed Code is not subject to the terms and conditions of Section 2.1, 2.4, or 3.1. Instead, each item of Separately Licensed Code is licensed under the license that accompanies such Separately Licensed Code. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any other applicable license accompanying the Separately Licensed Code. As required by the terms of the relevant third-party licenses, chumby makes the free and open source code provided under such licenses, and chumby's modifications to that free and open source code, available by written request at the notice address below.
2.4 Ownership of chumby Product and Software. The Software and all Intellectual Property Rights therein, are the exclusive property of chumby or its suppliers. All rights in and to the Software not expressly granted to you in this Agreement are reserved by chumby. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of chumby's existing or future Intellectual Property Rights in the chumby Product or chumby Software.
2.5 Third Party Licenses. You are solely responsible for complying with the terms and conditions of any and all components, software, programs, applications, content or other information or materials that you load, run on or connect to the chumby Product. chumby and its suppliers shall have no responsibility, obligations or liability with respect to any components, software, programs, applications, content or other information or materials not incorporated in and delivered with the original Product.
2.6 Trademarks. chumby does not license to Licensee any rights to any chumby trademark, trade name, or logo. You may not use the name "chumby" for commercial purposes without the prior written consent of chumby.
3. Limited Warranty; Disclaimer
3.1. chumby warrants that the Software will be capable of operating for a period of ninety (90) days from the date of purchase substantially in accordance with the end-user documentation published by chumby and delivered with the chumby Product ("Documentation"), when used as specified by chumby in the Documentation. If Licensee's state or jurisdiction mandates a longer warranty for this Software, then Licensee has an implied warranty under the laws of that jurisdiction to that extent only. chumby will, at its sole option and discretion, either make reasonable efforts to correct or provide you with a workaround for any substantial nonconformance of the Software with the Documentation. The foregoing is Licensee's sole and exclusive remedy for breach of any warranty on the Software.
3.2 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3.1, ALL SOFTWARE IS PROVIDED "AS IS" AND TO THE FULLEST EXTENT PERMITTED BY LAW, CHUMBY AND ITS SUPPLIERS SPECIFICALLY AND EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE WITH RESPECT TO ANY BREACH OF THE FOREGOING WARRANTY.
4. Limitation of Liability. NEITHER CHUMBY NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THIS AGREEMENT OR THE USE OF THE SOFTWARE, OR FOR THE LOSS OF DATA, INFORMATION OF ANY KIND, BUSINESS, PROFITS, OR FOR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED, AND WHETHER OR NOT CHUMBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CHUMBY'S SUPPLIERS WILL HAVE NO LIABILITY TO LICENSEE WHATSOEVER. IN NO EVENT WILL CHUMBY'S TOTAL LIABILITY TO LICENSEE IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THIS AGREEMENT OR THE SOFTWARE EXCEED LICENSEE'S PURCHASE PRICE OF THE CHUMBY PRODUCT. THE FOREGOING IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY AGAINST CHUMBY AND ITS SUPPLIERS FOR BREACH OF THIS AGREEMENT OTHER THAN BREACH OF WARRANTY.
5. Termination and Expiration. Upon termination or expiration of this Agreement for any reason, all licensed rights granted in this Agreement will immediately cease to exist. You must immediately cease all further use of the Software and certify to chumby in writing that you have fully complied with this requirement.
Sections 1, 2.2, 2.3, 2.4, 2.5, 3, 4 and 6 will survive termination of this Agreement for any reason.
6. Miscellaneous. Licensee may not assign this Agreement or any interest or rights granted hereunder, or delegate any of its duties hereunder, to any third party. chumby may freely assign this Agreement. This Agreement will terminate immediately upon occurrence of any prohibited assignment, and any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement is the final, complete and exclusive agreement between the parties relating to the Software and supersedes all prior or contemporaneous proposals, representations, understandings, or agreements relating thereto, whether oral or written. No waiver or modification of the Agreement will be valid unless signed by each party. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof. The headings in this Agreement do not affect its interpretation. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the foregoing arbitration clause does not apply for any reason, you agree to submit to the personal jurisdiction of the state courts located within San Diego County, California and the federal courts in the Southern District of California for the purpose of litigating all such claims or disputes, which courts shall have exclusive jurisdiction of such claims or disputes. Notwithstanding the foregoing, chumby may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Should you have any question about this Agreement, or if you desire to contact chumby, please contact us by mail at chumby industries, inc., 12264 El Camino Real, Suite 203, San Diego, CA 92130.
Updated: May 2007
