PLEASE CAREFULLY READ
ALL 16 SECTIONS OF THE FOLLOWING END USER LICENSE AGREEMENT (“AGREEMENT”),
WHICH APPLIES TO THE INTELLICAST® BOATING
SOFTWARE APPLICATION (“SOFTWARE”) ON THE APPLE iOS SYSTEM. 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.
1. PURPOSE. This Agreement is between you and WSI
Corporation ("WSI"). It is not with Apple. WSI, not
Apple, is solely responsible for the Software and the content thereof. The Software provides weather-related
information and services on your computing or mobile device (the
"Services"). In addition to
this Agreement, your use of the Software and the
Services is also governed by WSI’s Terms of Use available for review at http://www.intellicast.com/IntellicastBoating/Terms.aspx (“Terms of Use”) and by WSI’s Privacy Statement available
for review at http://www.intellicast.com/IntellicastBoating/Privacy.aspx (“Privacy Statement”), as each may be updated from time to time. In the event of a conflict between those
documents and this Agreement, the terms of this Agreement shall control. The Software and Services are licensed to
you, not sold.
2. NO
REFUND. All fees for the Software and
Services are 100% non-refundable.
3. LICENSE GRANT.
A. WSI grants you a
personal, non-exclusive, non-transferable, revocable, limited license to (i)
install and use the Software, in object code format only on
each iOS Product that you own or control that is associated with the Apple
account through which the Software was downloaded and as permitted by the Usage
Rules set forth in the App Store Terms of Service, and to use the
Services available through the Software, for your personal use only. You may not (i) copy, reproduce, distribute,
publicly perform, publicly display, modify, translate, reverse engineer,
decompile, disassemble (except to the extent applicable laws specifically
prohibit such restriction) or create derivative works based on the Software or
Services; (ii) rent, lend, lease, redistribute, grant a security interest in,
sell, sublicense, or otherwise transfer rights to the Software or Services; or
(iii) remove any proprietary notices or labels in the Software or Services. The terms of this Agreement apply to all
upgrades and updates to the Software provided by WSI, unless such upgrade or
update is accompanied by a separate license, in which case the terms of that
license will govern. WSI reserves all
rights not expressly granted to you.
B. WSI reserves the
right to modify, add or remove features or functions of the Software and/or the
Services. From time to time WSI may update of the Software on your device when
a new version of the Software becomes available. This update may occur automatically or
through other means, or you may be required to download the update before
continuing to use the Software.
Notwithstanding the foregoing, WSI has no obligation to support the
Software or Services to make available to you any subsequent updates or
versions of the Software or Services.
C. Your use of the
Software is voluntary, and you may uninstall the Software at any time by using
your device’s remove or uninstall functionality. However, by uninstalling the
Software, you will be unable to access the Services provided by the Software.
4. SERVICES.
A. The Services contain
and link to copyrighted material, trademarks and other proprietary information
and content, including, without limitation, text, software, maps, photos,
video, graphics, music and sound (collectively “Content”). You may not copy, reproduce, modify, publish,
transmit, distribute, publicly display, publicly perform, participate in the
transfer or sale, create derivative works, or in any way exploit, any of the
Content, in whole or in part. Except as
otherwise expressly permitted under copyright law, no copying, redistribution,
retransmission, publication or commercial exploitation of Content is permitted
without the express written permission of WSI and if applicable, any third
party copyright owner. In the event of
any permitted copying, redistribution or publication of Content, no changes in
or deletion of author attribution, trademark legend or copyright notice shall
be made and no ownership rights shall be transferred.
B. Uninstalling the
Software is your sole right and remedy with respect to any dispute with WSI
respecting the Software or the Services, including, without limitation, any
dispute related to, or arising out of: (i) any term of this Agreement; (ii) any
policy or practice of WSI, including, without limitation, any terms of the Privacy Statement, Terms of Use, or WSI's
enforcement or application of these policies; (iii) the amount or type of
fees, applicable taxes, billing methods, or any change to the fees, applicable
taxes, or billing methods; (iv) the functionality of or problems
with the Software or the Services; or (v) the Content or its availability or
unavailability through the Software or the Services.
C. In connection with
the Software and/or Services, WSI may collect, use and share information,
including your personal information, in accordance with the Privacy Statement.
D. Certain Services that may be accessed from,
displayed on or linked to from the Software are not available in all languages
or in all countries. WSI makes no representation that such Services are
appropriate or available for use in any particular location. To the extent that
you make use of such Services, you do so on your own initiative and at your own
risk and are responsible for compliance with any applicable laws, including but
not limited to applicable local laws.
E. All or any part of the Software and Services may be
provided through or enabled by device manufacturers, communications carriers,
distributors or other third parties not controlled by or affiliated with WSI
(collectively “Third Parties”). You acknowledge that phone service, Internet or
data access, or SMS messaging service may be required in order for you to use the
Software and the Services. You are responsible for obtaining all Third
Party services and access at your sole cost, and WSI shall have no
responsibility or liability for any such services or access.
F. There is no representation, warranty or guarantee of availability,
accuracy, completeness or timeliness of any location data or location
capabilities of the Software, product or service. Be cautious when sharing location information
with others.
G. If you agree to receive alerts in the Services
from WSI, you expressly consent to receiving telephone calls, text messages and
e-mails to the contact points you identify to WSI in the Services, and in the
case of telephone calls, you expressly consent to receiving calls that use an
automatic telephone dialing system and a pre-recorded or artificial voice
message.
H. You
acknowledge that Apple is not responsible for addressing any claims of you or
any third party relating to the Software or your possession and/or use of that
Software, including, but not limited to: (i) product liability claims; (ii) any
claim that the Software fails to conform to any applicable legal or regulatory
requirement; and (iii) claims arising under consumer protection or similar
legislation; and WSI’s responsibility for such claims is only as expressly set
forth in this Agreement.
J. You
must comply with applicable third party terms of agreement when using the
Software.
5. DISCLAIMER OF
WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
A. THE SOFTWARE AND
SERVICES ARE PROVIDED ON AN "AS IS," “WITH ALL FAULTS,” AND "AS
AVAILABLE" BASIS. YOU BEAR THE RISK OF USING
IT. WSI, ON BEHALF OF ITSELF,
PROVIDERS OF OPERATING SYSTEMS ON WHICH THE SOFTWARE OPERATES, DISTRIBUTORS OF
THE SOFTWARE, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOFTWARE IS DISTRIBUTED,
DEVICE MANUFACTURERS, AND EACH OF OUR RESPECTIVE AFFILIATES, LICENSEES,
LICENSORS, AND SUPPLIERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
CONTRACTORS AND AGENTS (COLLECTIVELY “DISTRIBUTORS”),
GIVES NO
EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO THE
SOFTWARE OR SERVICES. DISTRIBUTORS EXPRESSLY
DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED
WARRANTIES FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
B. NO REPRESENTATION OR
WARRANTY IS MADE REGARDING THE AVAILABILITY, ACCURACY OR RELIABILITY OF THE
SOFTWARE, THE SERVICES, OR ANY CONTENT, ALERTS OR OTHER FUNCTIONALITY OF THE
SOFTWARE OR THE SERVICES; AND YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE
SAME IS AT YOUR OWN DISCRETION AND RISK.
C. WITHOUT LIMITING THE
FOREGOING, THE DISTRIBUTORS MAKE NO REPRESENTATION OR WARRANTY THAT (i) THE
SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SOFTWARE OR THE
SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE
CONTENT OBTAINED FROM THE SOFTWARE OR THE SERVICES, OR ANY ALERTS, MAPS OR FUNCTIONALITY
OF THE SOFTWARE OR THE SERVICES WILL BE AVAILABLE, ACCURATE OR RELIABLE, (iv)
THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED
BY YOU THROUGH THE SOFTWARE OR SERVICES WILL MEET YOUR EXPECTATIONS, OR (v) ANY
ERRORS OR BUGS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.
D. IN THE EVENT OF ANY FAILURE OF THE SOFTWARE
TO CONFORM TO ANY APPLICABLE WARRANTY, IF SUCH WARRANTY IS AVAILABLE, YOU MAY
NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE SOFTWARE TO YOU;
AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO
OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SOFTWARE.
6. LIMITATION OF
LIABILITY.
A. YOU
EXPRESSLY UNDERSTAND AND AGREE THAT THE DISTRIBUTORS SHALL NOT BE LIABLE UNDER
A NEGLIGENCE THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
CONSEQUENTIAL OR EXEMPLARY LOSS, LIABILITY, DAMAGE OR EXPENSE, INCLUDING BUT
NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE OR OTHER LOSSES (EVEN IF REPAIR,
REPLACEMENT OR A REFUND FOR THE SOFTWARE OR SERVICES DOES NOT FULLY COMPENSATE
YOU FOR ANY LOSSES OR WSI KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH LOSS, LIABILITY, DAMAGE, OR EXPENSE), DIRECTLY
OR INDIRECTLY RESULTING FROM OR ARISING OUT OF: (i) CLAIMS FOR BREACH OF
CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY,
NEGLIGENCE, OR OTHER TORT TO THE EXTENT PERMITTED BY APPLICABLE LAW; (ii) YOUR
USE OR YOUR INABILITY TO USE THE SOFTWARE OR THE SERVICES, (iii) THE COST OF
PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES; (iv) UNAUTHORIZED ACCESS TO OR
ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY
THIRD PARTY; (vi) THIS AGREEMENT; (vii) INJURY TO PERSON OR PROPERTY (INCLUDING
DEATH), OR (viii) ANY OTHER MATTER RELATING TO THE SOFTWARE, THE SERVICES, OR
CONTENT.
B. YOU
EXPRESSLY UNDERSTAND AND AGREE THAT THE DISTRIBUTORS SHALL NOT BE LIABLE UNDER
ANY LEGAL THEORY NOT COVERED IN SECTION 6(A), INCLUDING, WITHOUT LIMITATION,
CONTRACT, TORT, OR STRICT LIABILITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY LOSS, LIABILITY, DAMAGE OR
EXPENSE, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE OR OTHER
LOSSES (EVEN IF REPAIR, REPLACEMENT OR A REFUND FOR THE SOFTWARE OR SERVICES
DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR WSI
KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSS, LIABILITY, DAMAGE,
OR EXPENSE), DIRECTLY OR INDIRECTLY RESULTING FROM OR ARISING OUT OF: (i)
CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION,
STRICT LIABILITY, OR OTHER TORT TO THE EXTENT PERMITTED BY APPLICABLE LAW; (ii)
YOUR USE OR YOUR INABILITY TO USE THE SOFTWARE OR THE SERVICES, (iii) THE COST
OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES; (iv) UNAUTHORIZED ACCESS TO
OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY
THIRD PARTY; (vi) THIS AGREEMENT; (vii) INJURY TO PERSON OR PROPERTY (INCLUDING
DEATH), OR (viii) ANY OTHER MATTER RELATING TO THE SOFTWARE, THE SERVICES, OR
CONTENT.
C. YOUR
SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH WSI RELATED TO THIS AGREEMENT OR
THE SERVICES, SOFTWARE OR CONTENT SHALL BE UNINSTALLING THE SOFTWARE AND
CEASING USE OF THE SOFTWARE AND SERVICES. IN THE EVENT A COURT AWARDS
DIRECT DAMAGES DESPITE THE FOREGOING, SUCH DAMAGES SHALL NOT EXCEED THE LESSER
OF $10.00 OR THE AMOUNT YOU PAID TO WSI FOR THE SOFTWARE. THE FOREGOING
LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.
D. YOU
ACKNOWLEDGE THAT, IN THE EVENT OF ANY CLAIM THAT THE SOFTWARE, SERVICES OR YOUR
POSSESSION AND USE OF THE SOFTWARE OR SERVICES INFRINGES A PERSON’S
INTELLECTUAL PROPERTY, APPLE AND WSI ARE NOT RESPONSIBLE FOR THE INVESTIGATION,
DEFENSE, SETTLEMENT AND DISCHARGE OF ANY SUCH INTELLECTUAL PROPERTY
INFRINGEMENT CLAIM.
E. SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF
LIABILITY. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 5 AND 6 MAY
NOT APPLY TO YOU.
7. TITLE. As between you
and WSI, WSI (or its licensors) retains all right, title and interest in and to
the Software and the Services, including all intellectual property rights
therein, and all data and information provided to you, uploaded to you, or
downloaded by you, through or by the Software, unless covered by a more
specific agreement.
8. TERMINATION AND
MODIFICATION.
A. WSI may, in its sole
discretion, terminate this Agreement and any Services without cause at any
time. In addition, your license to the
Software may, at WSI's discretion, expire when new versions of the Software are
released.
B. Your license to the
Software and WSI’s obligations under this Agreement will automatically
terminate if you fail to comply with any term of this Agreement. No notice shall be required from WSI to
effect such termination. In the event of such termination, you will receive no
refund of any amounts paid for the Software or the Services.
C. In the case of any
termination of this Agreement, your license to use the Software and Services
will automatically terminate. Upon termination (whether by you or WSI), you are
required to uninstall the Software from your device and immediately discontinue
use of the Services. The following sections shall
survive termination of this Agreement: 2, 4, 5, 6, 7, 8, 9, 11, 13 and 14.
9. EXPORT CONTROLS. The
Software and any underlying technology may not be exported outside the United
States in a manner that is prohibited by applicable export laws and
regulations. By downloading or using the Software outside the United States,
you assume responsibility for compliance with the foregoing. You represent and
warrant that (i) you are not located in a country that is subject to a U.S.
Government embargo, or that has been designated by the U.S. Government as a
“terrorist supporting” country; and (ii) you are not listed on any U.S.
Government list of prohibited or restricted parties.
10. AMENDMENT. WSI may,
in its sole discretion, change, modify, add or remove portions of the Agreement
at any time and such changes shall become effective immediately or, where
required by law, 30 days after their publication in connection with the Services.
WSI may notify you of any such changes by posting notice of such changes on the
WSI website www.wsi.com or sending notice via other means. Your continued
use of the Software or Services following notice of such change shall be deemed
to be your acceptance of any such modification. If you do not agree to any such
modification, you must immediately stop using the Software and Services.
11. INDEMNIFICATION. You
agree to hold harmless, indemnify and defend the Distributors from and against
any claims, actions, demands, costs, liabilities, losses, damages, fines and
expenses (including reasonable attorneys' fees and costs) arising out of or
relating to your use of the Software, the Services, or both, or any failure by
you to comply with this Agreement. If,
despite the personal nature of the licenses granted to you under this
Agreement, you allow any individual to use the Software or the Services, or
provide to any individual any information received via the Software or the
Services, you agree to inform such individual of the existence and provisions
of this Agreement, which shall be binding upon such individual, and you agree
to hold harmless, indemnify, and defend the Distributors from any and all claims,
actions, demands, costs, liabilities, losses, damages, fines and expenses (including
attorneys' fees and costs) related to such individual’s use of the Software or
Services. Some
jurisdictions limit or do not allow such indemnification clauses. Accordingly, all or part of this paragraph 11 may
not apply to you, but only the extent not permitted by applicable law.
12. NO ASSIGNMENT. This
Agreement, and the Software and the Services provided under this Agreement, are
personal to you, and may not be transferred to, assigned to, or used by any
other person without WSI's express prior written consent.
13. MISCELLANEOUS. 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. WSI shall not be liable for any delay or failure in
performance under this Agreement or interruption of Services, resulting from
acts of God, civil or military authority, war, acts of terrorism, labor
disputes, materials or services provided by third parties, or any cause beyond
the reasonable control of WSI. This
agreement shall be construed in accordance with the laws of the State of
Massachusetts, without regard to its conflict of laws rules. All disputes under
this agreement shall be resolved by the State or Federal courts in
Massachusetts, and each party consents to the exclusive jurisdiction of such
courts and hereby waives any jurisdictional or venue defenses otherwise
available to it. Any translation of this
Agreement is done for local requirements and in the event of a dispute between
the English and any non-English version, the English version of this Agreement
shall govern. If you are located in the province of Quebec, Canada, the
following clause applies: The parties hereby confirm that
they have requested that this Agreement and all related documents be drafted in
English. Les parties ont exigé que le
présent contrat et tous les documents connexes soient rédigés en anglais.
14. NOTICE. All notices
contemplated by this agreement will be in writing and mailed by overnight
delivery with delivery confirmation or by certified mail with delivery
confirmation; provided that, WSI may provide notice to you via electronic mail,
the Software, or the Services. All
notices to WSI shall be addressed to WSI Corporation, ATTN: Legal Department, 300
Interstate North Parkway, Atlanta, Georgia 30339.
15. CONTACT INFORMATION. If you have questions, complaints or claims
with respect to the Software or Services, please contact us at contentsupport@wsi.com
or
write to us at WSI Corporation, ATTN: Mobile
Department, 4 Minuteman Road, Andover, Massachusetts 01810.
16. THIRD PARTY BENEFICIARY. WSI and you
acknowledge and agree that Apple, and Apple’s subsidiaries, are third party
beneficiaries of this Agreement, and that, upon your acceptance of the terms
and conditions of this Agreement, Apple will have the right (and will be deemed
to have accepted the right) to enforce this Agreement against you as a third
party beneficiary thereof.
WSI Corporation
400 Minuteman Road
Andover, MA 01810
Last Updated: July 13, 2012