ROSE POINT ECS LICENSE AGREEMENT
This License Agreement (the “Agreement”) is between You (the user) and Rose Point Navigation Systems, Inc. (“Licensor”). Rose Point ECS is offered to You conditioned on Your acceptance of the terms and conditions contained in this Agreement. You will be requested at the end of this Agreement to indicate Your acceptance of these terms and conditions. By clicking on the “ACCEPTED and AGREED” button, You will have accepted and agreed to be bound by these terms and conditions. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
1. Grant of License.
1.1 Licensor hereby grants to You a non-exclusive, non-transferable (except as permitted below), perpetual right to use Rose Point ECS and accompanying supplier computer software, data associated media, and electronic documentation (collectively, the “Product”) in CD-ROM format and electronic format transmitted from Licensor’s website. Your license is subject to the terms and conditions of this Agreement and subject to timely payment of applicable license fees and other charges.
1.2 You shall only use the Products subject to the restrictions described herein. Licensor expressly reserves any and all rights which it may have in or to the Product and which are not expressly licensed by Licensor to You under this Agreement.
1.3 You may install and use one copy of the Product on one personal computer. You may install one additional copy of the Product on a second personal computer provided that either a) the second personal computer is used as a backup to the first and the Product is only used by a single person on both computers, or b) both computers are used aboard a single vessel.
Except as specifically permitted herein, You may not: network, rent, sell, publish, loan, modify, sub-license or lease the Product to others; or reverse engineer, reverse translate, decompile, disassemble or in any manner decode the Product or attempt to discover the source code of the Product, except as otherwise permitted by law. You may assign Your rights under this Agreement on a permanent basis provided the assignee agrees in writing to the terms of this Agreement.
3. Product Registration.
Certain features of the Product, including but not limited to technical support and software updates, require that the Product be registered to You. You may make a one-time permanent transfer of the Product to another user provided that You do not retain any copies of the Product or any of its components.
4. Additional Products.
When You purchase a license for the Product, You will have the opportunity to purchase licenses for additional products and services, some of which may be owned by third parties and provided by Licensor under license. In addition, materials provided by Rose Point as part of Rose Point ECS Navigation Publication, Update and Support Service (“ECS Services”) may be provided by third parties. All such third party materials (“Additional Materials”) are subject to additional license and purchase terms, which are available for review at www.rosepoint.com/legal. These terms are in addition to those set forth in this Agreement and You should review them carefully prior to completing your purchase and accepting these terms. By clicking the “ACCEPTED and AGREED” button (for on-line purchases) or signing this Agreement, You acknowledge that You have read and agreed to all of the terms of this Agreement, INCLUDING those applicable to Additional Materials. In the event of a conflict between this Agreement and the terms for the Additional Materials, the terms specific to the Additional Materials shall control as to those materials. You may also purchase Additional Materials and subscriptions for the ECS Services later, after You have purchased Your license for the Product, as long as You have a valid Product license. YOU MAY NOT PURCHASE ADDITIONAL PRODUCTS WITHOUT A VALID PRODUCT LICENSE AND YOUR LICENSE FOR ECS SERVICES WILL TERMINATE IMMEDIATELY UPON TERMINATION OF YOUR PRODUCT LICENSE.
You may terminate this Agreement at any time. Licensor may immediately terminate this Agreement if You breach any representation, warranty, agreement or obligation contained or referred to in this Agreement. If this Agreement is terminated as the result of Your breach, You will immediately remove and delete the original and all copies of the Product from Your computers. If this Agreement expires or is terminated for any other reason, You may retain Your current version of the Products and Materials but You will no longer receive updates or be eligible for ECS Services for them. You understand that using Products and Materials that have not been updated involves risk and You assume all responsibility for Your use thereof following termination or expiration of this Agreement. The provisions of Sections 2, 4, 5, 7-16 of this Agreement shall survive termination of this Agreement.
6. Proprietary Rights and Confidentiality.
The Product and the ECS Services are solely owned by Licensor and its suppliers, and it is protected by trade secret, copyright and patent laws. You will take all steps necessary to protect Licensor’s and its suppliers’ proprietary rights in the Product, including, but not limited to, the proper display of copyright, trademark, and other proprietary notices on any versions or copies in any form of the Product, including copies stored on diskettes, hard drives or other media. You will, at Your own cost and expense, protect and defend Licensor’s ownership of the Product against all claims, liens and legal processes of Your creditors and will keep the Product free and clear of all such claims, liens and processes.
7. Support and Updates.
Rose Point provides two levels of services in connection with the Product: Standard Support and ECS Service (“Services”).
7.1. Standard Support is available without additional charge for one-year after purchase of a valid Rose Point ECS license as described on Licensor’s web site (www.rosepoint.com): (a) technical support (i.e., assistance relating to the operation and configuration of the Product) and (b) updates (i.e. bug fixes and other minor corrections to the Product) to the Product will be provided. Any updates shall be deemed to be part of the Product and may be subject to additional license terms which may replace or amend the terms of the this Agreement. By installing an update You agree to such additional terms. Except as so modified, Your use of the Product shall be governed by the terms and conditions of this Agreement.
7.2 ECS Services as described above are available to all new Rose Point ECS licensees for one-year as part of a new Rose Point ECS license. At the end of the free introductory period, You may continue ECS Services by purchasing an annual subscription on the terms set forth above. If You do not purchase (and maintain Your subscription by renewing it prior to expirations) You will no longer have access to the materials provided as part of the ECS Services. For more information on ECS Services, see (www.rosepoint.com).
8. Disclaimer of Warranties by Licensor and Warranty From You.
8.1 THE PRODUCT AND ECS SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. LICENSOR FURTHER DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT FOR THE PRODUCT. LICENSOR MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OR THE ACCURACY OF THE INFORMATION CONTAINED IN THE PRODUCT AND OTHER INFORMATION PROVIDED TO YOU BY LICENSOR OR REGARDING THE USE, OR THE RESULTS OF USE, OF THE PRODUCT OR SERVICES IN TERMS OF CORRECTNESS, AVAILABILITY, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT OR SERVICES. THE INFORMATION PROVIDED BY LICENSOR COULD INCLUDE TECHNICAL OR OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS.
8.2 You warrant that: (a) all individuals having access to the Product and the ECS Services will adhere to all the terms and conditions of this Agreement; (b) You shall, at Your own expense, promptly enforce the restrictions in this Agreement against any person who gains access to the Product or the ECS Services in violation of the terms; (c) You shall immediately notify Licensor in writing of any misuse, misappropriation or unauthorized disclosure, display or copying of the Product and/or the ECS Services that may come to Your attention; and (d) the person accepting the terms of this Agreement has actual authority to bind his or her organization and its other users who will gain access to and use of the Product and the ECS Services to each and every term, condition and obligation to this Agreement.
9. International Navigational Requirements and Safety Warnings.
9.1 Legal Compliance. You agree to comply with all laws, regulations, and requirements of the Country in which You are using the Products and the ECS Services.
9.2 International Safety Warnings and Disclaimers. YOU ACKNOWLEDGE AND AGREE THAT:
9.2.1 NAUTICAL NAVIGATION IS AN INHERENTLY DANGEROUS ACT AND THAT THIS PRODUCT IS ONLY A NAVIGATIONAL AID AND NOT THE SOLE METHOD OF NAVIGATION;
9.2.2 NO NATIONAL HYDROGRAPHIC OFFICE OF ANY COUNTRY HAS VERIFIED THE DATA OR INFORMATION IN THIS PRODUCT OR SERVICES, INCLUDING BUT NOT LIMITED TO NAUTICAL CHARTS, MAPS, OR OTHER IMAGES (IN DIGITAL OR PHYSICAL FORM), AND NO SUCH OFFICE WILL ACCEPT RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OF ANY REPRODUCTION OR ANY MODIFICATION MADE TO THE DATA OR INFORMATION PRODUCED BY THE PRODUCT OR SERVICES;
9.2.3 NO NATIONAL HYDROGRAPHIC OFFICE WARRANTS THAT THIS PRODUCT OR THE SERVICES SATISFIES NATIONAL OR INTERNATIONAL REGULATIONS REGARDING THE USE OF THE APPROPRIATE PRODUCTS FOR NAVIGATION; AND
9.2.4 YOU SHALL CONSULT OFFICIAL, UPDATED NAUTICAL CHARTS WHICH ARE ISSUED BY EACH COUNTRY THROUGH WHICH YOU TRANSVERSE FOR PURPOSES OF NAVIGATION. SUCH COUNTRIES INCLUDE BUT ARE NOT LIMITED TO THE UNITED STATES, THE UNITED KINGDOM, CANADA, AUSTRALIA, DENMARK, NORWAY, FINLAND, AND GERMANY.
You agree to indemnify, defend and hold harmless Licensor and its suppliers from and against any and all claims, costs, liabilities, damages and expense (including, but not limited to reasonable attorneys’ fees and legal costs), including claims by third parties, which Licensor may incur as result of Your breach of any of the terms and conditions of this Agreement and/or use of the Product or Services.
11. Limitation of Liability.
11.1 IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITING THE FOREGOING, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR THE SERVICES OR FOR ANY CAUSE OF ACTION, INCLUDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 ANY DAMAGES THAT LICENSOR IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER IN THE AGGREGATE SHALL BE LIMITED TO THE LICENSE FEES PAID FOR USE OF THE PRODUCT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION UNDER THIS AGREEMENT, MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER YOU HAVE KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF SUCH ACTION.
The parties to this Agreement have each agreed to the fees and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages set forth in this Agreement, that the same form an essential basis of the bargain between the parties, and that they shall not be removed, even in the event of the failure of an essential purpose of a remedy.
12. Injunctive Relief.
Because of the unique nature of the Product and the ECS Services, You understand and agree that Licensor will suffer irreparable injury in the event You fail to comply with any of the terms of this Agreement and that monetary damages may be inadequate to compensate Licensor for such breach. Accordingly, You agree that Licensor will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement.
You shall also pay all freight, transportation, insurance, media-related costs and taxes and other governmental charges, however characterized (except based on Licensor’s income), in connection with Your licensing of the Product and the ECS Services. Licensor shall be neither in default nor liable for any failure in performance or loss or damage under this Agreement due to any cause beyond its control. This Agreement shall inure to the benefit of Licensor and its successors, administrators, heirs and assigns.
14. Acknowledgment of Understanding – Entire Agreement.
You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive statement of the agreement between Licensor and You and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between Licensor and You relating to the subject matter of this Agreement. Except as provided in Section 7.1 above, this Agreement may not be amended, except by an agreement in writing which is signed by authorized representatives of Licensor and You.
15. Governing Law and Venue.
This Agreement shall be governed by the laws of the State of Washington, but not including the 1980 United Nations Convention on Contracts for International Sale of Goods. Exclusive venue for any action under this Agreement shall be in King County, State of Washington. You consent to the personal jurisdiction of the courts of such venue.
16. U.S. Government Restricted Rights.
16.1 Commercial Computer Software. The Government acknowledges and agrees that any and all computer software, computer data bases and related documentation (collectively “computer software”) is “commercial item” as defined in 48 C.F.R. § 2.101 and “commercial computer software” as that term is used in 48 C.F.R. § 12.212. The Government shall have only those rights specified in the license in this Agreement under which the commercial computer software and/or commercial computer software documentation was obtained. 48 C.F.R. § 12.212(b). Pursuant to 48 C.F.R. § 12.212(a)(1), the Government acknowledges and agrees that it shall have no right to use, modify, reproduce, release, perform, display or disclose computer software or computer software documentation except as mutually agreed to by the parties in this Agreement. The rights stated in FARS 52.227-19 – Commercial Computer Software – Restricted Rights (48 C.F.R. § 52.227-19) are hereby withheld from the Government.
16.2 Commercial Computer Software and Commercial Computer Software Documentation. The Government acknowledges and agrees that any and all computer software is “commercial computer software” as defined at DFARS 227.7201 and DFARS 252.227-7014 and as that term is used in DFARS 227.7202-3 and 227.7202-4 and that any and all computer software documentation is “commercial computer software documentation” as that term is used in DFARS 227.7202-3 and 227.7202-4. The Government shall have only the rights specified in the license in this Agreement under which the commercial computer software and/or commercial computer software documentation was obtained. DFARS 227.7202-3(a). The Government shall have no right to use, modify, reproduce, release, perform, display or disclose computer software or computer software documentation except as shall be as identified in this Agreement. DFARS 227.7202-4.
16.3 Manufacturer is Rose Point Navigation Systems, Inc., 18005 NE 68th Street, Suite A-100, Redmond, WA 98052 USA.