REDRAY Software License Agreement
REDRAY SOFTWARE LICENSE AGREEMENT
IMPORTANT – READ CAREFULLY: This Software License Agreement (“SLA”) is a legal agreement between you (either an individual or a single entity) and RED.COM, INC. (“RED”) for software owned by RED and its affiliated companies and its third party suppliers and licensors that accompanies this SLA, which includes software, documentation, interfaces, content, fonts and any data that comes with the REDRAY device and updates (“Software”). The Software is licensed, not sold, to you by RED for use only under the terms of this SLA. RED and its licensors retain ownership of the Software itself and reserve all rights not expressly granted to you.
1. GRANT OF LICENSE. RED grants you the following rights provided that you comply with all terms and conditions of this SLA: You are granted a limited, non-exclusive, non-transferable license to use the Software on a single REDRAY device.
2. RESERVATION OF RIGHTS AND OWNERSHIP. RED and its licensors retain all right, title and interest in the Software and all copies thereof, including all copyright and other intellectual property rights. RED and its licensors reserves all rights not expressly granted to you in this SLA. The Software is licensed, not sold.
3. LIMITATIONS ON END USER RIGHTS. You agree that only RED has the right to enhance or otherwise modify the Software. You have no rights to any source code for the Software. You agree not to, or cause or permit, directly or indirectly the modification, disassembly, recompilation, or reverse engineering of the Software or any part thereto, or otherwise attempt to gain access to the source code to the Software. You agree not to create derivative works or cause or permit others, directly or indirectly to create derivative works based upon the Software. The Software is licensed as a single product. Its component parts may not be separated for use on more than once device. Under no circumstances shall you sell, license, sub-license, publish, and display, distribute, rent, lease, assign, or otherwise transfer to a third party the Software or any copy thereof, in whole or in part.
4. CONSENT TO USE OF DATA. You must register the REDRAY device with RED to use or enable services. You agree to register the REDRAY device with RED within 30 days of purchase. You agree that RED and its affiliates may collect, maintain, process, transmit, and use technical, diagnostic, usage and related information, including but not limited to information about your REDRAY device, computer, system and application software, usage, content, and peripherals. RED may use the information to comply with Digital Right Management and to provide and improve RED’s products and services, including providing the information to RED’s licensors and content distribution partners. RED may also provide the information to third party advertisers for the purpose of providing advertising statistics without identifying you personally. RED will not disclose this information in a form that personally identifies you. Information disclosed will be referenced only by the REDRAY device Product Identification Number (PIN).
5. UPDATES. RED and its licensors have no obligation to provide updates, bug fixes or error correction. If RED provides updates, such updates may be automatic and may delete or change the nature or features of the Software, including functions you may rely upon and you may lose data. You consent to updates by RED. Any updates shall be deemed and shall constitute part of the Software and the terms of this SLA apply to such updates.
6. SOFTWARE TRANSFER. You may not transfer this SLA or the rights to the Software granted herein to any third party without the written consent of RED. Prior to the transfer, the end user receiving the Software must agree to all the SLA terms.
7. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end user, end use, and destination restrictions issued by U.S. and other governments.
8. TERMINATION. This SLA is effective until terminated. Your rights under this License will terminate automatically without notice from RED if you fail to comply with any of the terms and conditions of this SLA. Upon termination of this SLA, you must cease all use of the Software and destroy all copies, full or partial, of the Software. The following Sections survive any termination of this SLA: Sections 2 – 4, 6 – 19.
10. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed, manufactured or intended for use for hazardous environments or high risk activities requiring a fail-safe performance. You agree not to use the REDRAY device with activities in which the failure of the REDRAY device could lead to death, personal injury, or severe physical or environmental damage. RED and its licensors specifically disclaim any express or implied warranty of fitness for high risk activities.
11. DISCLAIMER OF WARRANTY REGARDING THIRD-PARTY APPLICATIONS. RED DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE AVAILABILITY, USE, TIMELINESS, SECURITY, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE CONTENT OF ANY APPLICATION OR CONTENT PROVIDER, WHETHER SUCH APPLICATION OR CONTENT IS INCLUDED WITH THE PRODUCT DISTRIBUTED BY RED, IS DOWNLOADED, OR OTHERWISE OBTAINED. USE OF THIRD PARTY CONTENT OR APPLICATION IS DONE AT YOUR SOLE DISCRETION AND RISK.
12. DISCLAIMER OF WARRANTY. You expressly acknowledge and agree that the use of the Software is at your sole risk. The Software is provided “AS IS” and without warranty of any kind. RED AND ITS LICENSORS EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO THE SOFTWARE OR ANY COMPONENT THEREOF, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. RED AND ITS LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE CORRECT. FURTHERMORE, RED AND ITS LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, PERFORMANCE OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RED OR ITS LICENSORS OR THEIR RESPECTIVE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. RED and its licensors provide no warranty that any device, software or data will not be damaged by the Software.
13. LIMITATION OF LIABILITY. RED AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THIS SOFTWARE. RED AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE SOFTWARE OR ANY ASSOCIATED HARDWARE OR DEVICE, DOWN TIME AND USER’S DOWNTIME, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY CLAIM OR DEMAND AGAINST YOU BY ANY OTHER PARTY, EVEN IF RED’S AND ITS LICENSOR’S HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL RED’S OR ITS LICENSOR’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT BE GREATER THAN FIFTY U.S. DOLLARS ($50.00). YOU ACKNOWLEDGE THAT THESE LIMITATIONS ARE REASONABLE, AND FURTHER AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. INDEMNIFICATION. You agree to defend, indemnify, and hold RED and its licensors harmless from and against any claim or lawsuits, including reasonable attorneys’ fees that arise or result from your use of the Software and/or from your breach of any of the terms of this SLA.
15. U.S. GOVERNMENT END USERS. The Software is licensed only with “restricted rights” and as “commercial items” consisting of “commercial software” and “commercial software documentation” with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
16. AS APPLICABLE: THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL USE OF A CONSUMER OR OTHER USES IN WHICH IT DOES NOT RECEIVE THE REMUNERATION TO (I) ENCODE VIDEO IN COMPLIANCE WITH AVC STANDARD (“AVC VIDEO”) AND/OR (II) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, LLC. SEE HTTP://WWW.MPEGLA.COM.
17. GOVERNING LAW AND JURISDICTION. This SLA shall be governed by the laws of the State of California, without reference to it principles of conflicts of law. The parties consent to exclusive jurisdiction in Orange County, California for any dispute arising from the terms and conditions of this SLA. The parties waive their right to have an action under this SLA brought or tired elsewhere. The prevailing party in any action under this SLA shall be entitled to recover its reasonable attorneys’ fees in addition to any other damages or other awards ordered by the court.
18. THIRD PARTY BENEFICIARY. For all purposes of this SLA, each of the licensors of any of the Software shall be expressly deemed an intended third party beneficiary of this SLA and shall have the right to enforce the terms and conditions of this SLA.
19. ENTIRE AGREEMENT; SEVERABILITY. This SLA is the entire agreement between you and RED relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this SLA. If any provision of this SLA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.