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Wahoo Studios, Inc.
End-User License Agreement
Revised: January 8, 2018
Please read carefully the following terms and conditions before using this product. It contains software, the use of which is licensed by Wahoo Studios, Inc. and its affiliates including NinjaBee and Wahoo Ocean LLC (collectively "Wahoo") to its customers for their use only as set forth below. If you do not agree with the terms and conditions of this agreement, do not use this software. By accepting the agreement and downloading the Software you are subject to the terms and conditions of the End-User License Agreement ("Agreement").
1. Grant of License. The Software is licensed to you by Wahoo, and its use is subject to this License. Wahoo grants to you a limited, personal, non-exclusive right to use the Software. You may distribute copies of the demo version of the Software freely to other users, provided that any copy of the Software consists of the original, unaltered files and proprietary notices. The Software unlock key, if any, cannot be shared with other users. You are allowed to load and use the software on a single computer or gaming unit with multiple users OR on multiple computers or gaming units with only a single user. Wahoo reserves all rights not expressly granted to you by this License.
2. Restrictions. Wahoo owns the title, copyright, and other intellectual property rights in the Software. The Software contains copyrighted material, trade secrets and other proprietary material. You may not delete the copyright notices or any other proprietary legends on the original copy of the Software. You may not decompile, modify, reverse engineer, disassemble or otherwise reproduce the Software. You may not copy, rent, lend, lease, sublicense, distribute, publicly display, create derivative works based upon the Software or otherwise commercially exploit the Software. You may not electronically transmit the Software from one computer, console or other platform to another or over a network.
3. Termination. This License is perpetual and may not be terminated except by mutual written agreement of the parties hereto. However, your rights to use the Software, as set forth above: (i) may be terminated by you at any time, by destroying the Software; or (ii) will terminate immediately without notice from Wahoo if you fail to comply with any provision of this License (in which event, you must destroy the Software).
4. Disclaimer of Warranty on Software. You are aware and agree that use of the Software is at your sole risk. The Software is provided "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WAHOO MAKES NO WARRANTY THAT (i) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS, (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, AND/OR (vi) YOU MAY USE, PRACTICE, EXECUTE, OR ACCESS THE SOFTWARE WITHOUT VIOLATING THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF UTAH LAW IS NOT HELD TO APPLY TO THIS AGREEMENT FOR ANY REASON, THEN IN JURISDICTIONS WHERE WARRANTIES, GUARANTEES, REPRESENTATIONS, AND/OR CONDITIONS OF ANY TYPE MAY NOT BE DISCLAIMED, ANY SUCH WARRANTY, GUARANTEE, REPRESENTATION AND/OR WARRANTY IS: (1) HEREBY LIMITED TO THE PERIOD OF EITHER (A) THIRTY (30) DAYS FROM THE DATE DOWNLOADING THE SOFTWARE OR (B) THE SHORTEST PERIOD ALLOWED BY LAW IN THE APPLICABLE JURISDICTION IF A THIRTY (30) DAY LIMITATION WOULD BE UNENFORCEABLE; AND (2) LICENSOR'S SOLE LIABILITY FOR ANY BREACH OF ANY SUCH WARRANTY, GUARANTEE, REPRESENTATION, AND/OR CONDITION SHALL BE TO PROVIDE YOU WITH A NEW COPY OF THE SOFTWARE.
5. Disclaimer of Other Content. As a service to you, Wahoo may include with the Software third party drivers and other software utilities intended to assist you with installing and operating the Software (collectively, the "Drivers"). Wahoo specifically disclaims any warranties relating to the Drivers, and you agree that your use of the Drivers is at your own risk. The Drivers are not part of the Software and shall not be governed by the terms and conditions of this License except for and to the extent of this disclaimer.
6. Disclaimer of Unreal® Engine Content for Software based on the Unreal® Engine. For certain products, Software includes the Unreal® Engine code and other code, materials, and information (the "Epic Materials") from Epic Games, Inc. ("Epic"). All Epic Materials are provided on an "as is" and "as available" basis, "with all faults" and without warranty of any kind. Wahoo, Epic, and Epic's affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Epic Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Epic knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Wahoo, Epic, and Epic's affiliates make no warranty that (1) any of the Epic Materials will operate properly, including as integrated in the Software, (2) that the Epic Materials will meet your requirements, (3) that the operation of the Epic Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the Epic Materials can or will be corrected, (5) that the Epic Materials are or will be in compliance with a platform manufacturer's rules or requirements, or (6) that a platform manufacturer has approved or will approve this Software, or will not revoke approval of this Software for any or no reason. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed by Wahoo and Epic. Wahoo, Epic, and Epic's affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Epic Materials. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, neither Wahoo, Epic, Epic's licensors, nor its or their affiliates, nor any of Wahoo's or Epic's service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the Epic Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure, or malfunction, or any and all other commercial damages or losses. In no event will Wahoo, Epic, Epic's licensors, nor its or their affiliates, nor any of Wahoo's or Epic's service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or the Epic Materials, or the delay or inability to use or lack of functionality of the Epic Materials, even in the event of Wahoo's, Epic's, or Epic's affiliates' fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Licensor, Epic or Epic's affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Wahoo, Epic, Epic's licensors, its and their affiliates, and any of Wahoo's or Epic's service providers shall be limited to the full extent permitted by law.
7. General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, WAHOO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOR DOES WAHOO WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WAHOO OR ANY WAHOO-AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
8. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WAHOO BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SOFTWARE, INCLUDING THOSE THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF WAHOO HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT SHALL WAHOO'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Indemnities; Injunctive Relief. You agree to indemnify, defend and hold harmless Wahoo and each of its respective officers, employees, directors, agents, licensees (excluding you), successors and assigns from and against all losses, lawsuits, damages, causes of action and claims relating to and/or arising from your breach of this License, distribution or any use of any Variations, and/or any other use of the Software. You agree that your unauthorized use of the Software, or any part thereof, may immediately and irreparably damage Wahoo such that Wahoo could not be adequately compensated solely by a monetary award and that at Wahoo's option, Wahoo shall be entitled to an injunctive order, in addition to all other available remedies including a monetary award, appropriately restraining and/or prohibiting such unauthorized use without the necessity of Wahoo posting bond or other security. Your obligations set forth in this Section shall survive the cancellation or termination of this License.
10. Choice of Law and Venue. THIS LICENSE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH CONTROLLING U.S. FEDERAL LAW AND THE LAWS OF THE STATE OF UTAH, EXCLUSIVE OF ITS CHOICE OF LAW AND/OR CONFLICTS OF LAW JURISPRUDENCE. THE EXCLUSIVE VENUE FOR ALL LITIGATION REGARDING OR ARISING OUT OF THIS LICENSE SHALL BE IN UTAH COUNTY, UTAH, AND YOU AGREE TO SUBMIT TO THE JURISDICTION OF THE COURTS IN UTAH COUNTY, UTAH FOR ANY SUCH LITIGATION.
11. Miscellaneous. Nothing herein shall be deemed to supercede or derogate from Wahoo's remedies at law for any violation of this License or applicable law. If any provision of this License is unenforceable, the rest of it shall remain in effect. This License constitutes the entire agreement between you Wahoo with respect to the use of the Software and the support services (if any) and supersedes all prior or contemporaneous oral or written communications and representations with respect to the Software or any other subject matter covered by this License.