ADAPTALUX SOFTWARE LICENSE AGREEMENT
IMPORTANT: BY USING YOUR ADAPTALUX, YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (THE “LICENSE”) IN RESPECT OF:
(1) SOFTWARE INSTALLED ON OR EMBEDDED IN YOUR ADAPTALUX AT THE DATE OF MANUFACTURE (WHICH WE REFER TO AS THE “ORIGINAL SOFTWARE”);
(2) SOFTWARE UPDATES TO THE ORIGINAL SOFTWARE WHICH MAY BE DOWNLOADED TO YOUR ADAPTALUX IN THE FUTURE;
(3) ANY OTHER SOFTWARE WHICH IS OWNED BY ADAPTALUX LTD. AND EMBEDDED IN THE PRODUCT, DOWNLOADED TO THE PRODUCT AND/OR USED IN CONJUNCTION WITH THE PRODUCT; AND
(4) ANY SOFTWARE WHICH IS LICENSED TO ADAPTALUX AND STATED BY ADAPTALUX TO BE COVERED BY OR SUBJECT TO THIS SOFTWARE LICENSE AGREEMENT (WHETHER SOFTWARE APPS, SERVICES OR OTHERWISE).
THE SOFTWARE REFERRED TO IN (1), (2) (3) AND/OR (4) ABOVE SHALL FOR THE PURPOSES OF THIS LICENSE BE CALLED “ADAPTALUX SOFTWARE”. THIS LICENSE DOES NOT COVER SOFTWARE OF THIRD PARTIES WHICH IS NOT PART OF THE ORIGINAL SOFTWARE OR ANY UPDATES TO THE ORIGINAL SOFTWARE OR STATED TO BE COVERED BY OR SUBJECT TO THIS LICENSE (WHICH WE CALL “THIRD PARTY SOFTWARE” IN THIS LICENSE).
THIS LICENSE IS A LEGAL AGREEMENT BETWEEN YOU AND ADAPTALUX LTD. PLEASE READ THIS LICENSE CAREFULLY BEFORE USING YOUR ADAPTALUX OR DOWNLOADING THE SOFTWARE UPDATE(S). BY USING YOUR ADAPTALUX OR DOWNLOADING A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, DO NOT USE THE PRODUCT.
(a) The Adaptalux Software (being the software mentioned in (1), (2), (3) and (4), above) is licensed, not sold, to you by Adaptalux Ltd. for use only under the terms of this License. Adaptalux Ltd. and its licensors retain ownership of the Adaptalux Software and reserve all rights not expressly granted to you under this License.
(b) Adaptalux Ltd, may at its discretion, may make available future feature enhancements, software updates and/or provide system restore software (being “Software Updates”) for your Adaptalux but those Software Updates will not significantly change the functionality or operation of the product without your consent for Adaptalux Ltd. to do so. The Software Updates, if any, may not necessarily include all existing software features or new features that Adaptalux releases for newer or other models of Adaptalux. The terms of this License will govern any Software Updates provided by Adaptalux Ltd. that replace and/or supplement the Original Software or other Adaptalux Software, unless such Software Update is accompanied by a separate license in which case the terms of that license agreement will govern.
- Permitted License Uses and Restrictions.
(a) Any open source software will be licensed under its own software licenses. Otherwise, subject to the terms and conditions of this License, you are granted a limited, non-exclusive license (meaning the Adaptalux Software can be licensed by Adaptalux Ltd to other people) to use the Adaptalux Software on a single Adaptalux-branded Product. Except as permitted in section 2(b) below, and/or unless as provided in a separate written agreement between you and Adaptalux Ltd, signed by a corporate officer of Adaptalux, this License does not allow the product Software to exist on more than one Adaptalux-branded product at a time, and you may not distribute or make the Adaptalux Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use Adaptalux proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party software applications for use with Adaptalux products. Some of those rights are available under separate licenses from Adaptalux Ltd. For more information on developing third party applications for Adaptalux products, please email email@example.com.
(b) Any open source software will be licensed under its own software licenses. Otherwise, subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download Software Updates that may be made available by Adaptalux Ltd for your Adaptalux product to update or restore the software on any such Adaptalux product that you own or control. This License does not allow you to update or restore any Adaptalux that you do not control or own, and you may not distribute or make the Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time. If you download a Software Update to your computer, you may make one copy of the Software Updates stored on your computer in machine- readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original.
(c) You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Adaptalux product Software or any part thereof.
(d) You agree to use the Adaptalux Software in compliance with all applicable laws, including but not limited to local laws of the country or region in which you reside or in which you download or use the Adaptalux Software.
The open source software will be licensed under its own software licenses. Otherwise, you may not rent, lease, lend, sell, redistribute, or sublicense the Adaptalux Software. You may, however, make a one-time permanent transfer of all of your license rights to the Adaptalux Software to another party in connection with the transfer of ownership of your Adaptalux, provided that:
(a) the transfer must include your Adaptalux and all of the Adaptalux Software, including all its component parts, original media, printed materials and this License;
(b) you do not retain any copies of the Adaptalux Software, full or partial, including copies stored on a computer or other storage device; and
(c) the party receiving the Adaptalux Software reads and agrees to accept the terms and conditions of this License.
- Services and Third Party Materials.
(a) The Adaptalux Software may enable access to services provided by Adaptalux Ltd, and/or services provided by third parties and web sites (collectively and individually, “Services”). Such Services may not be available in all languages or in all countries. Use of these Services may require Internet access and use of certain Services may require a password and username may require you to accept additional terms and may be subject to additional fees. You understand and agree that Services which are provided by Adaptalux Ltd, or clearly stated by Adaptalux Ltd, to be subject to this License will be subject to the terms and conditions set out in this License and, if so, you agree to abide by this License in relation to your use of those Services. Third party Services which are not stated to be subject to this License or other Adaptalux terms and conditions will be subject to the terms and conditions of the third party providing the Services.
(b) You understand that by using any of the Services, you may encounter content that may be deemed oﬀensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that, unless Adaptalux Ltd is unable to exclude its liability under law, Adaptalux Ltd shall have no liability to you for content that may be found to be oﬀensive, indecent, or objectionable.
(c) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using those Services, you acknowledge and agree that Adaptalux Ltd is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such third party Services or web sites. Adaptalux Ltd, its oﬃcers, aﬃliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third party Services, third party materials or web sites, or for any other materials, products, or services of third parties [not included in the Adaptalux Services]. Third party materials and links to other web sites and third party services are provided solely as a convenience to you.
(d) Adaptalux Ltd gives you certain warranties as set out in section 7 below. Otherwise, neither Adaptalux Ltd nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information, location data or any other data displayed by any Services.
(e) To the extent that you upload any content through the use of the Services, you agree that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms and conditions applicable to the Services, the content or the data. You acknowledge and agree that the Services contain proprietary content, information and material that are owned by Adaptalux Ltd, the site owner and/or their licensors, and are protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or the relevant terms and conditions or that infringes any intellectual property rights of a third party or Adaptalux Ltd. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Adaptalux Ltd is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, oﬀensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
(f) In addition, Services and Third Party Materials that may be accessed, linked to or displayed on the Adaptalux product are not available in all languages or in all countries or regions. Adaptalux Ltd gives you certain warranties as set out in section 7 below. Otherwise, Adaptalux Ltd makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. Save that Adaptalux Ltd will not, in relation to Adaptalux’s own provided Services, amend the Services so that they no longer meet their description without your consent, Adaptalux Ltd and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Adaptalux Ltd be liable for the removal of or disabling of access to any such Services. Adaptalux Ltd may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
- Termination. This License is eﬀective until terminated. Your rights under this License (but not in law or under other agreements with Adaptalux Ltd) will terminate automatically or otherwise cease to be eﬀective without notice from Adaptalux Ltd if you fail to comply with any term(s) of this License. Upon the termination of this License or if you transfer the Adaptalux product (whichever is the earlier), you shall cease all use of the Adaptalux Software and the Adaptalux Services. Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this License shall survive any such termination (meaning they are still capable of being enforced by either you or Adaptalux Ltd, as applicable after termination).
- Warranties and Disclaimer of Warranties.
(a) If you are a customer who is a consumer (someone who uses the Adaptalux Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
(b) In relation to the Original Software and Software Updates where, in each case, the software is embedded in the product, that Software is covered additionally by Adaptalux’s Limited Manufacturer Warranty.
(c) In addition to the rights set out in section 7(b), Adaptalux Ltd warrants that:
(i) Adaptalux’s Services will be provided with reasonable skill and care;
(ii) the Adaptalux Software will materially work as set out in its documentation and meet its description;
(iii) the Adaptalux Software will be fit for purpose; and
(iv) the Adaptalux Software will be of satisfactory quality.
(d) EXCEPT AS OTHERWISE EXPRESSLY STATED BY ADAPTALUX LTD (INCLUDING BUT NOT LIMITED TO SECTIONS 7(b), 7(c) AND 8(a)), YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE ADAPTALUX SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE ADAPTALUX SOFTWARE IS AT YOUR SOLE RISK.
(e) EXCEPT AS OTHERWISE EXPRESSLY STATED BY ADAPTALUX (INCLUDING BUT NOT LIMITED TO SECTIONS 7(b), 7(c) AND 8(a)), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ADAPTALUX SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ADAPTALUX LTD AND ADAPTALUX’S LICENSORS (COLLECTIVELY REFERRED TO AS “ADAPTALUX LTD” FOR THE PURPOSES OF SECTIONS 7 AND 8) EXCLUDE ALL TERMS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE ADAPTALUX SOFTWARE AND SERVICES.
(f) EXCEPT AS OTHERWISE EXPRESSLY STATED BY ADAPTALUX LTD (INCLUDING BUT NOT LIMITED TO SECTIONS 7(b), 7(c) AND 8(a)), ADAPTALUX LTD DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE ADAPTALUX SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE ADAPTALUX SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE ADAPTALUX SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE ADAPTALUX SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE ADAPTALUX SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS ADAPTALUX SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
(g) EXCEPT AS OTHERWISE EXPRESSLY STATED BY ADAPTALUX LTD (INCLUDING BUT NOT LIMITED TO SECTIONS 7(b), 7(c) AND 8(a)), YOU FURTHER ACKNOWLEDGE THAT THE ADAPTALUX SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE ADAPTALUX SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
(h) SECTION 8(a) SHALL OVERRIDE THIS SECTION 7(h) AND SHALL PREVAIL AND TAKE PRIORITY TO THE EXTENT OF ANY INCONSISTENCY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ADAPTALUX LTD OR A ADAPTALUX AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY STATED BY ADAPTALUX LTD (INCLUDING BUT NOT LIMITED TO SECTIONS 7(b) AND 7(c) AND 8(a)), SHOULD THE ADAPTALUX SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability.
(a) ADAPTALUX LTD DOES NOT LIMIT ITS LIABILITY TO YOU FOR:
(i) DEATH OR PERSONAL INJURY CAUSED BY ADAPTALUX LTD OR ITS’ AGENTS NEGLIGENCE;
(ii) FRAUD OR FRAUDULENT MISREPRESENTATION;
(iii) ANY BREACH OF THE OBLIGATIONS IMPLIED BY LAW REGARDING THE PASSING OF GOOD TITLE IN THE ADAPTALUX SOFTWARE OR SERVICES;
(iv) ANY OTHER MATTER FOR WHICH IT WOULD BE ILLEGAL OR UNLAWFUL FOR ADAPTALUX LTD TO EXCLUDE OR ATTEMPT TO EXCLUDE; OR
(v) ANY OTHER LEGAL PROTECTION APPLYING IN YOUR COUNTRY FOR PROTECTION OF CONSUMERS OR IN LAW THAT CANNOT BE EXCLUDED BY LAW.
(b) SAVE AS SET OUT IN SECTION 8(a) OR OTHERWISE EXPRESSLY SET OUT IN THIS LICENSE, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL ADAPTALUX LTD BE LIABLE FOR PERSONAL INJURY, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES OR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE WHERE SUCH LOSS OR DAMAGE IS NOT AN OBVIOUS CONSEQUENCE OF ADAPTALUX’S BREACH OR IF IT WAS NOT CONTEMPLATED BY YOU AND ADAPTALUX LTD AT THE TIME WE ENTERED INTO THIS LICENSE, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE ADAPTALUX SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE ADAPTALUX SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR OTHERWISE) AND EVEN IF ADAPTALUX LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF CERTAIN LOSSES OR DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL ADAPTALUX’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE HUNDRED AND FIFTY POUNDS (U.S. £150.00) AND THE FOREGOING CAP ON LIABILITY WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Export Control.
You may not use or otherwise export or re-export the Adaptalux Software except as authorized by UK law and the laws of the jurisdiction(s) in which the Adaptalux Software was obtained. In particular, but without limitation, the Adaptalux Software may not be exported or re-exported (a) into any U.K. or U.S. embargoed countries or (b) to anyone on the U.K & U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Adaptalux Software, you agree and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Adaptalux Software for any purposes prohibited by UK law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
- Government End Users.
The Adaptalux Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
- Controlling Law, Courts and Severability.
This License will be governed by and construed in accordance with the laws of [England], excluding its conflict of law principles. Adaptalux Ltd and you both submit to and agree that this License shall be subject to the non-exclusive jurisdiction of the [English] courts. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and eﬀect.
- Complete Agreement; Governing Language.
Save that nothing in this License excludes a party’s liability for fraud or fraudulent misrepresentation, this License constitutes the entire agreement between you and Adaptalux Ltd relating to the Adaptalux Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Adaptalux Ltd. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
- Third Party Acknowledgements.
(a) Portions of the Adaptalux Software may utilize or include third-party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Adaptalux Software, and your use of such material is governed by their respective terms.
(b) No use of or access to the Service may be made by automated or recorded scripting or queries or by any unauthorized means unless expressly permitted.
(c) The Adaptalux Software is for non-commercial use and you may not use the Adaptalux Software for any performance or benchmark testing with any third party products or services.
(d) Any use by Adaptalux Ltd of third party trademarks or service marks denotes interoperability only, and does not necessarily indicate an endorsement by or affiliation with the trademark or service mark owner.