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