This SnowShoe Standard End User License Agreement (the “Agreement”) is a legal agreement between user (“You” or “Your”), and SnowShoeFood, Inc. (“SnowShoe”), for the use of the client libraries and any other software made available for download by You, as set forth here (each individually, as well as collectively, being the “Software”). The Software includes, among other things, software and any updates or upgrades developed by SnowShoe, material licensed to SnowShoe by third parties, and associated documentation. By accessing, copying, or otherwise using all or any part of the Software, You acknowledge that You have read this Agreement, understand it, and agree to be bound by its terms and conditions. If You do not agree to the terms and conditions of this Agreement, do not access or use the Software. SnowShoe will not and does not license the Software to You unless You agree to the terms of this Agreement. In consideration of the promises and covenants described below, and other good and valuable consideration, You agree as follows:
1. License Grant. Subject to the terms and conditions hereof, SnowShoe grants You a nonexclusive, nontransferable, limited license to copy, make, use, publish, publicly perform, publicly display, integrate, modify, compile, customize, make derivatives of, distribute, transmit, offer to sell and sell, rent, lease, lend and otherwise exploit and commercialize the Software solely for use in conjunction with your development of your application utilizing the SnowShoe authentication hardware stamps (“License”). We may provide updates and/or upgrades to the Software or any part thereof, at our sole discretion. Any updates and/or upgrades provided by SnowShoe shall be governed by the terms and conditions of this Agreement. Certain parts of the Software are Publicly Available Software or licensed to you on an “open source” basis. “Publicly Available” means: (a) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g. Linux) or similar licensing or distribution models; (b) any software that requires as a condition of use, modification and/or distribution that such software or other software incorporated into, derived from or distributed with such software: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; or (iii) be redistributable at no charge; and (c) software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Source License (SISL); and (vii) the Apache Software License. The parts of the Software that are Publicly Available Software and their associated license agreements can be found here. SnowShoe shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Software any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You relating to the operation of the Software.
2. Limitations and Restrictions. Except as specifically provided in Section 1 of this Agreement, You may not, in whole or in part: (a) copy any part of the Software, (b) distribute copies of the Software, in whole or in part, to any third party; (c) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Software, except as otherwise permitted by law; (d) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to the Software to third parties; (e) use any part of the Software to act as a service bureau or application service provider; or (f) permit access to the Software by any third party. Nothing in this Agreement shall give You the right or license to use any trade names, trademarks, service marks or other brand indicia used in connection with the Software including without limitation “SnowShoe” and/or any marks of SnowShoe’s providers and suppliers.
3. Proprietary Rights and Confidentiality. The Software is owned by SnowShoe and its suppliers and/or licensors and is protected by copyright, patent and trade secret laws. You will take those reasonable steps necessary to protect SnowShoe’s and its suppliers’ and/or licensors’ proprietary rights in the Software related to Your use and possession of the same. You will keep the Software confidential and will not disclose or publish it, or any part of it, to others, except as specifically permitted pursuant to Section 1. All design elements of the Software, including but not limited to the design, text, graphics, interfaces and the selection and arrangement thereof, are protected by copyrights owned by SnowShoe. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED TO SNOWSHOE. Other product, publication, and company names herein are not intended as a claim of right by SnowShoe and may be the trademarks of their respective owners.
4. No Responsibility. SnowShoe will not be liable for losses or damages arising from or in any way related to the Software. If all or any part of the Software is found to be defective in workmanship or materials and SnowShoe is given notice within 10 days of discovering such defect, Your sole and exclusive remedy is to request a replacement of the defective portion of the Software from SnowShoe, and SnowShoe may elect, in its sole discretion, to provide such replacement.
5. Your Warranty to Provider. You warrant that all individuals having access to the Software will observe and perform all the terms and conditions of this Agreement. You shall, at your own expense, promptly enforce the restrictions in this Agreement against any person who gains access to your password or copy of the Software with your permission and who violates such restrictions, by instituting and diligently pursuing all legal and equitable remedies against him or her. You agree to immediately notify SnowShoe in writing of any misuse, misappropriation or unauthorized disclosure, display or copying of the Software that may come to your attention. You agree to indemnify and hold harmless SnowShoe from any and all claims resulting from your use of the Software or breach of this Agreement.
6. Disclaimer of Warranties and Indemnification. SNOWSHOE IS LICENSING THE SOFTWARE ON AN “AS IS” BASIS TO YOU. SNOWSHOE MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, AND ACCURACY, FOR ANY PURPOSE, OF ITS SOFTWARE, ITS OPERATION OR THE CONTENT CONTAINED HEREIN. SNOWSHOE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, ITS OPERATIONS, AND ITS CONTENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR ANY SOFTWARE CONTAINED IN THE SOFTWARE.
7. Limitation of Liability. IN NO EVENT SHALL SNOWSHOE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER RELATED OR SIMILAR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE CONNECTED WITH THE USE OF OR INABILITY TO USE ALL OR ANY PART OF THE SOFTWARE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (ii) WHETHER OR NOT DAMAGES WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT. ANY DAMAGES ARISING UNDER THE USE OF THE SOFTWARE THAT SNOWSHOE IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF TWENTY FIVE DOLLARS ($25.00) OR THE LICENSE FEES ACTUALLY PAID BY YOU TO SNOWSHOE UNDER THIS AGREEMENT. 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.
8. Indemnity. You agree to indemnify and hold harmless SnowShoe and its officers, directors, employees, consultants, agents and anyone providing information or software used in the Software from any and all claims arising from, related to, or incidental to Your use of the Software, including without limitation damage to any hardware or products because of Your misuse of the Software.
9. Term and Termination. This Agreement will commence upon acceptance by You, and will continue in full force and effect until terminated. SnowShoe may immediately terminate this Agreement, and exercise any other rights it may have, at any time upon notice to You or immediately if You breach any part of this Agreement or You terminate or suspend Your business operations. You may terminate this Agreement at any time. Upon termination by either party for any reason, You shall either promptly return to SnowShoe all copies of the Software in Your possession or control or destroy (i.e. uninstall or delete) Your copies of the Software and certify in writing that all such copies have been destroyed. All sections that may be reasonably interpreted to or are intended to survive this Agreement will survive this Agreement.
10. Governing Law. This Agreement shall be governed by the laws of the State of Wisconsin in the United States, without giving effect to the State of Wisconsin’s choice of law principles and not including the 1980 United Nations Convention on Contracts for International Sale of Goods. Venue for any action under this Agreement shall lie in Dane County, Wisconsin. If any action is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable attorney’s fees together with expenses and costs incurred with such action, including without limitation necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof.
11. 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 SnowShoe and You and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between Provider and You relating to the subject matter of this Agreement. This Agreement may not be amended, except by an agreement in writing which is signed by authorized representatives of SnowShoe and You.
12. Severability. You agree that the terms and conditions stated in this Agreement are severable. If any paragraph, provision, or clause in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall be valid and enforceable and the parties shall use good faith to negotiate a substitute, valid and enforceable provision which most nearly effects the parties' intent in entering into this Agreement.
13. Injunctive Relief. You agree that, because of the unique nature of the Software, SnowShoe may suffer irreparable injury in the event You fail to comply with any of the terms of this Agreement, and that monetary damages would be inadequate to compensate SnowShoe for any such breach by You. Accordingly, You agree that SnowShoe 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.