WeatherLink Software License Agreement
IMPORTANT! READ CAREFULLY BEFORE USING THE SOFTWARE By using this Software you indicate acceptance of the following Software License Agreement.
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (“Agreement”) is a legal agreement between you (either an individual or an entity) and Davis Instruments Corporation (“Davis”). If you do not agree to the terms of this agreement, take the Software package and the accompanying items to the place you obtained them to inquire about their refund policy.
GRANT OF LICENSE
This license agreement permits you to use one copy of the Davis Instruments Software included in this package in object code form only (the “Software”) on a single computer, subject to the terms and conditions of this Agreement. The Software is in use on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., a hard disk) of that computer. The Software may assist in the collection of data (“Data”) and in creating content that may be displayed on www.DavisNet.com or another website (“Content”).
1. You may not install the Software on a network, unless the Software is used on only one computer. You may make no more than a reasonable number of copies of the Software for your own use, subject to all of the terms and conditions of this Agreement, including, without limitation, this Section.
2. You may not, and may not permit any third party to, make changes, decompile, reverse engineer or seek to discover the source code of the Software.
3. You may not sublicense, rent, lease, or loan the Software, but you may transfer the Software, accompanying Davis hardware, and Documentation on a permanent basis provided you retain no copies of any of the Software or Documentation and the recipient agrees to the terms of this Agreement. If the Software is an update or has been updated, any transfer must include the most recent update and all prior versions.
This Agreement is effective until terminated. Davis may terminate this Agreement at any time upon your breach of any of the provisions hereof. Upon termination of this Agreement, you will immediately cease all use of the Software, and return to Davis all copies of the Software and Documentation. You will be liable to Davis for all damages suffered as a result of that breach. Except for the license granted herein and as expressly provided herein, the terms of this Agreement will survive termination.
CHANGED PRODUCT FEATURES AND TERMS
Davis has the right at any time to change or discontinue any aspect or feature of the Software and/or services offered by Davis, including, without limitation, the content, the equipment needed for access, or use of the service, or the Software itself. Davis also has the right at any time to change or modify the terms and conditions applicable to use of the Software, or any part thereof, or to impose new conditions, including, without limitation, adding fees and charges for use for services that are currently free or adding or removing Data upload partners, including, but not limited to, CWOP, GLOBE and any others. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by any means including, without limitation, posting on www.DavisNet.com or any other Davis website, or by electronic or conventional mail, or by any other means. Any use of the Software or services by you after such notice shall be deemed to constitute acceptance of such changes, modifications, additions or deletions.
Davis warrants to the original end user of the Software that (a) the Software will perform substantially in accordance with the documentation provided by Davis, as modified by Davis from time-to-time (“Documentation”) for a period of ninety (90) days from the date of receipt and (b) any Davis hardware accompanying the Software will be free from defects in material and workmanship under normal use and service for a period of ninety (90) days from the date of receipt. This warranty will be void if you breach this Agreement or if the Software has been modified, tampered with, or improperly used. The end user acknowledges that the warranty provided by Davis in no way constitutes a guarantee or representation that use of the Software or reliance on any predictions or risk assessments resulting from use of the Software will be successful in preventing damage or loss to crops, land or agricultural facilities of the end user or that the predictions and risk assessments will accurately predict any particular risk.
DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DAVIS DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, WITH REGARD TO THE SOFTWARE, SERVICES, DOCUMENTATION, AND THE ACCOMPANYING HARDWARE. DAVIS DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY DAVIS, EXCEPT AS EXPRESSLY SPECIFIED IN THE DOCUMENTATION, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DAVIS EXPRESSLY DISCLAIMS ANY WARRANTY THAT USE OF THE SOFTWARE WILL ACCURATELY PREDICT OR ASSESS WEATHER CONDITIONS, SPECIFIC RISKS REGARDING DISEASES, INFESTATIONS, OR PESTS OR OTHER ADVERSE EFFECTS THAT THE USER MAY ENCOUNTER. DAVIS ADVISES ALL USERS THAT ANY PREDICTIONS OR RISK ASSESSMENTS RESULTING FROM USE OF THE SOFTWARE ARE MERELY PREDICTIONS AND ARE NOT GUARANTEES OF SPECIFIC RESULTS, AND THAT ALL SUCH PREDICTIONS AND ASSESSMENTS ARE, BY THEIR NATURE, LIKELY TO BE DIFFERENT FROM THE ACTUAL EXPERIENCE ENCOUNTERED BY THE USER DUE TO CHANGES IN WEATHER CONDITIONS, THE EXISTENCE OF OTHER VARIABLES THAT AFFECT PREDICTIONS AND ASSESSMENTS, AND OTHER FACTORS THAT CAUSE PREDICTIONS AND ASSESSMENTS TO DIFFER FROM THE ACTUAL RESULTS EXPERIENCED, PARTICULARLY IN AREAS WHICH ARE INHERENTLY SUBJECT TO A VARIETY OF INFLUENCES AND CONDITIONS.
LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, in no event will Davis be liable for any indirect, incidental, special, consequential or punitive damages, or damages for business interruption or loss of profits, revenue, business, savings, data, information, use or cost of substitute procurement, incurred by you or any third party, whether in an action in contract or tort, even if Davis has been advised of the possibility of such damages or if such damages are foreseeable. In no event will Davis’s liability for damages hereunder exceed the amounts actually paid by you to Davis for the Software and/or Davis hardware. The parties acknowledge that the limitations of liability and the allocation of risk in this Agreement are an essential element of the bargain between the parties, without which Davis would not have entered into this Agreement. Davis’s pricing reflects this allocation of risk and the limitation of liability specified herein. Without limiting the generality of the foregoing, the user acknowledges that the limitations of liability in this section expressly exclude any liability of Davis for any damages resulting from decisions made or actions taken by the user in reliance on the Software, including but not limited to any predictions, risk assessments, evaluations or recommendations that the Software may produce, and that Davis will not be liable or responsible for any damage, loss or expense incurred by any user in connection with damage to crops, products, land, equipment or other assets or activities of the user.
You must report to Davis, promptly in writing, any breach of the express warranties set forth above during the warranty period. Your sole and exclusive remedies, and Davis’s entire liability, for such a reported breach will be to correct or provide a reasonable workaround for any errors that caused the breach of warranty, or if Davis is unable to make the Software operate as warranted, you will be entitled to terminate the Software license and recover the fees paid to Davis for the Software license. Davis will have no obligations under the warranty provision set forth above if the breach of warranty is caused by abuse, misuse, alteration, neglect or accidental damage of the Software; the unauthorized repair, modification or installation of the Software; or the use or attempted use of non-Davis software or hardware in combination with the Software. Replacement or repair of Software does not extend its warranty period beyond the original warranty expiration date.
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
Davis retains all rights, title and interest in the Software, Data, Content and proprietary products owned by Davis, including, without limitation, copyright and trademark rights in the Software, Data and Content, the Integrated Pest Management Module trademark, and other trademarks, service names, symbols, identifiers, URL’s, formats, designs, and devices. The Software, Data and Content, and all rights thereto, are the property of Davis and are protected by applicable copyright or other law. The customer shall not claim any rights, including, without limitation, trademark or copyrights in any Software, Data or Content.
GOVERNING LAW AND JURISDICTION
This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the State of California without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in a state or federal court for Alameda County, California, and the parties hereby irrevocably consent to the jurisdiction and venue of such courts.
This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement will supersede the terms in any purchase orders or other ordering documents.
If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Davis. Any purported assignment, transfer or delegation by you will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
BY SELECTING THE “I AGREE” RADIO BUTTON BELOW, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU AND, (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.