IMPORTANT! The Nabi software (the “Software”) is licensed only on the condition that you agree to the terms and conditions set forth below. PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY.
YOUR ACCEPTANCE BY ACTIVATING AND USING THIS SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT.
IF, PRIOR TO INDICATING YOUR ACCEPTANCE BY ACTIVATING OR USING THIS SOFTWARE, YOU DETERMINE THAT YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT, YOU HAVE NO RIGHT TO USE THE SOFTWARE AND YOU SHALL NOT USE THE SOFTWARE. IN THE EVENT THAT YOU CONTINUE TO USE SUCH SOFTWARE WITHOUT AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT, YOU UNDERSTAND THAT YOU SHALL ASSUME ALL RESPONSIBILITIES AND LIABILITIES FOR SUCH UNAUTHORIZED USE OF THE SOFTWARE, AND FUHU WILL NEVER BE HELD LIABLE TO YOUR UNAUTHORIZED USE.
The Software that you are about to access was developed by Fuhu, Inc., a California corporation (“Fuhu”). This End-User License Agreement (this “Agreement”) sets forth the terms under which you, as an individual (“you”), may use the Software.
Based on the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you and Fuhu agree as follows:
This Agreement is a legal contract made between you and Fuhu. This Agreement contains the terms and conditions that you must comply with if you wish to access and use the Software. Your use of the Software may assist you in subscribing for or linking to other Fuhu products or services or those of its business partners (“Linked Services”). Separate terms and conditions apply to such Linked Services and you are encouraged to review them carefully prior to using them. Fuhu is not responsible for Linked Services provided by a third party other than Fuhu and such third party Linked Services are provided on an “AS IS” “WHERE IS” basis. Your use of certain functionality of the Software may be subject to other terms and conditions such as privacy policies and Internet terms of service as required by Fuhu. Please review those terms carefully.
Fuhu hereby grants to you a non-exclusive, non-assignable, non-sublicensable license, for your personal use only, for the term of this Agreement, to access and use the Software and any user’s guides, specifications, and other related documentation available online (the “Documentation”), subject to the terms and conditions of this Agreement.
Fuhu retains all rights to the Software and the Documentation not specifically granted in this Agreement. Fuhu owns the Software and the Documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to you any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works thereto, or the Documentation, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software and the Documentation are protected by United States laws and international treaty provisions.
YOU MAY NOT USE, COPY, OR MODIFY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
To the maximum extent permitted by law, you shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Software access to any third party; (c) make any copy of or otherwise reproduce the Software (or any of the screens comprising the Software user interface) except for those copies necessarily made by the personal computer and Internet browser that may be running aspects of the Software; or (4) use the Software to provide service bureau or time-sharing services.
You shall be solely responsible for providing and maintaining, at all times during the term of this Agreement, the Internet access necessary for your use of the Software.
The license granted in this Agreement is effective until terminated. The term of this Agreement and the license grant herein shall commence on the date you agree to this Agreement and activate the Software. This license shall also terminate automatically on your failure to comply with any of the terms of this Agreement. On termination of this Agreement, you agree to promptly destroy all printed copies and delete all electronic copies of any documentation that you have downloaded, printed, or created relating to the Software, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on your computers. Notwithstanding termination, the provisions of Sections 3, 6, 7, 8, 9, and 10 of this Agreement shall survive and continue to apply.
You agree that you shall not disclose to any third party the Software or any portion thereof, any technical, product, or business information, or any information that Fuhu identifies as confidential (collectively, “Confidential Information”) related to the Software without the prior written consent of Fuhu. You shall maintain the confidentiality of all Confidential Information and shall not use it for any purpose other than the performance of this Agreement.
Notwithstanding the foregoing, Confidential Information does not include information that you can demonstrate was (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by you; (b) in your possession before disclosure by Fuhu; or (c) disclosed to you by a third party not in violation of any obligations of confidentiality to Fuhu or to any third party.
You are not entitled to receive damages or payments from Fuhu for any cause relating to this Agreement, your use of the Software, any services provided by Fuhu under this Agreement, or to any Linked Services or other services provided by any third party in connection with your use of the Software. In addition, in no event shall you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with Fuhu or with the distribution, operation, development, or performance of the Software or any related products.
IN NO EVENT SHALL FUHU BE LIABLE TO YOU FOR ANY LOSSES, COSTS, OR DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL FUHU BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FUHU EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR THE COURSE OF DEALING BETWEEN THE PARTIES. FUHU DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, FUHU DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE SOFTWARE FUNCTIONALITY AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS THE SOFTWARE. YOUR SOLE REMEDY FOR ANY FAILURE OF THE SOFTWARE TO MEET YOUR EXPECTATIONS OR TO FAIL TO FUNCTION IS TO CEASE YOUR USE OF THE SOFTWARE.
This Agreement shall in all respects be governed by and be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.
If the performance of Fuhu under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, acts of government, or any other casualty or cause beyond the control of Fuhu, then Fuhu shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
You may not assign this Agreement or any of the rights granted by Fuhu hereunder, in whole or in part, without the prior written consent of Fuhu, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
You agree to obey and comply with any and all applicable United States laws, rules, and regulations governing the export of software.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND VENDOR, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND VENDOR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT BY A WRITING SIGNED BY THE PARTIES.