PENROSE STUDIOS, INC.
END USER LICENSE AGREEMENT
YOU WARRANT THAT YOU ARE AT LEAST EIGHTEEN YEARS OLD AND THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. About This Agreement. This Agreement applies to all software, content and documentation made available by Penrose Studios, Inc. (“Penrose”) to you (collectively, the “Software”). For avoidance of doubt, the term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available to you.
2.1 Grant. The Software is licensed, not sold, to you by Penrose. Subject to the terms and conditions of this Agreement, you are hereby granted a limited, non-exclusive, non-sublicensable and nontransferable license to install and use the Software for your personal, noncommercial use solely as set forth in this Agreement and any accompanying documentation during the term of this Agreement.
2.2 Previews or Trials. If the Software is provided to you for free or on a trial basis, then the license set forth in Section 2.1 shall only continue for the trial period specified by us.
2.3 Copies. You may only download the number of copies permitted by us, as may be set forth to you. Notwithstanding the foregoing, you may only use a single copy of the Software on a single device at any given time and you may not make the Software available on any network where it can be accessed by multiple users at the same time or otherwise circumvent any technical protocols we put in place to limit such activities.
2.4 Reservation of Rights. You agree to use your best efforts to prevent and protect the contents of the Software from unauthorized disclosure or use. Penrose and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to you. Penrose’s Licensors are the intended third party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein. There are no implied licenses granted by Penrose or its licensors under this Agreement. Except as specified above, you shall have no rights to the Software.
3.1 Limitation on Use. You may not use the Software except as expressly permitted in this Agreement. Except with Penrose’s prior written consent, you may not: (i) alter, modify or create any derivative works of the Software, the underlying source code, or the documentation in any way, including without limitation customization, translation or localization; (ii) port, reverse compile, reverse assemble, reverse engineer, or otherwise attempt to separate any of the components of the Software or derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); (iii) copy, redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (v) make a copy of the Software available on a network for use or download by multiple users; (v) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Software. You may not release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of Penrose for each such release. You may not cause or permit any third party to do any of the foregoing.
3.2 Third Party Software. You acknowledge that the Software may contain copyrighted software of Penrose’s suppliers or partners which are obtained under a license from such suppliers or partners ("Third Party Software"). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation an end user license agreement.
4. Ownership. You acknowledge and agree that the Software belongs to Penrose or its licensors. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. Penrose and its licensors retain all right, title and interest in and to all copies of the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. The Software are protected by copyright and other intellectual property laws and by international treaties. You may not make any copies of the Software except for your own personal use. Any and all other copies of the Software made by you are in violation of this license. All content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content. All trademarks used in connection with the Software are owned or controlled by Penrose, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. All suggestions or feedback provided by you to Penrose with respect to the Software shall be Penrose’s property and deemed Confidential Information of Penrose.
5. Your Data. You agree that Penrose may collect, use, store and transmit technical and related information that identifies your computer or other device (including the Internet Protocol Address), operating system and application software and peripheral hardware, that may be gathered periodically to facilitate the provision of software updates, dynamically served content, product support and other services to you, including online play. Penrose may also use this information in the aggregate, and in a form which does not personally identify you, to improve our products and services. IF YOU DO NOT WANT PENROSE TO COLLECT, USE, STORE, TRANSMIT OR DISPLAY THE DATA DESCRIBED IN THIS SECTION, PLEASE DO NOT INSTALL OR USE THE SOFTWARE.
6. No Support. This Agreement does not entitle you to receive from Penrose or its licensors hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software.
7. Term and Termination. This Agreement and your right to use the Software may be terminated by you or by Penrose at any time upon written notice. This Agreement automatically terminates if you fail to comply with its terms and conditions. Immediately upon termination, you shall return or destroy all copies of the Software in your possession, custody or control and if requested you shall certify to Penrose in writing that such return or destruction has occurred. The following sections of this Agreement survive any expiration or termination hereof: 1 and 4 - 14.
8. NO WARRANTY. YOU AGREE THAT THE SOFTWARE AND ANY RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND THAT PENROSE AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS. PENROSE AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF PENROSE KNOWS OR SHOULD HAVE KNOW OF SUCH PURPOSE), RELATED TO THE SOFTWARE OR DOCUMENTATION, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT. PENROSE AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.
9. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, PENROSE AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY DIRECT OR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL DAMAGES, EVEN IF PENROSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SOFTWARE. IN ANY CASE, PENROSE’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE REPLACEMENT OF THE SOFTWARE FOUND TO BE DEFECTIVE, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF PENROSE TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES.
10. Confidentiality. "Confidential Information" shall mean the Software and all other information disclosed to you that Penrose characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this Agreement, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Penrose. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Penrose in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Penrose in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Penrose prior to such disclosure to allow Penrose an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Penrose in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
11. Injunctive Relief. You acknowledge and agree that your breach or threatened breach of this Agreement shall cause Penrose irreparable damage for which recovery of money damages would be inadequate and that Penrose therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
12. Export Controls. The Software and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you agree to comply with all export laws and other applicable laws.
13. U.S. Government End Users. The Software each were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. §2.101. The Software consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Software and the Documentation that are specifically provided by this Agreement. Consistent with 48 C.F.R. §12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this Agreement.
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
14.1 Governing Law. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
14.2 Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Penrose. For any dispute with Penrose, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Penrose has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Penrose agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Penrose from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
14.3 CLASS ACTION/JURY TRIAL WAIVER. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PENROSE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
15.1 Waiver. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
15.2 Assignment; Successors and Assigns. You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Penrose may assign this Agreement to any entity at its sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
15.3 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Penrose in connection with the Software, shall constitute the entire agreement between you and Penrose concerning the Software. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
16. User Outside the U.S. If you are using the Software outside the United States, then the following shall apply: (a) You confirm that this Agreement and all related documentation is and will be in the English language; (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.