End User License Agreement (EULA)
OCEAN IMAGING APPLICATION/SOFTWARE END USER LICENSE AGREEMENT
IMPORTANT: THIS APPLICATION/SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND ATOLL VENTUERS, INC. DBA OCEAN IMAGING. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE APPLICATION/SOFTWARE. IT PROVIDES A LICENSE TO USE THE APPLICATION/SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING THE DOWNLOAD OR INSTALL NOW BUTTON AND USING THE APPLICATION/SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE APPLICATION/SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE APPLICATION/SOFTWARE.
1. "Ocean Imaging" means Ocean Imaging, Inc. and its licensors, if any.
2. "Application” and “Software" means only the Ocean Imaging Application/Software program(s) and third party Application/Software programs, in each case, supplied by Ocean Imaging herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and all updates or upgrades of the above that are provided to you.
1. You may install and use the Application/Software on up to two devices that have a Windows, Android or Apple iOS operating system,; provided, however, that, notwithstanding anything contrary contained herein, you may not use the Application/Software on any device and/or versions of the above operating systems, including, but not limited to, internet appliances, set top boxes (STB), game consoles, TVs, DVDs, gaming machines, home automation systems, kiosks or any other consumer electronics devices or mobile/cable/satellite/television or closed system based service. A license for the Application/Software may not be shared, installed or used concurrently on more than two (2) different devices.
2. You agree that Ocean Imaging may audit your use of the Application/Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Application/Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Ocean Imaging for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
3. Your license rights under this EULA are non-exclusive.
1. You may not make or distribute copies of the Application/Software, or electronically transfer the Application/Software from one device or computer to another or over a network.
2. You may not make or distribute copies of image or other data files produced by Ocean Imaging.
3. You may not alter, merge, modify, adapt or translate the Application/Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Application/Software to a human-perceivable form.
4. You may not sell, rent, lease, or sublicense the Application/Software.
5. You may not modify the Application/Software or create derivative works based upon the Application/Software.
6. In the event that you fail to comply with this EULA, Ocean Imaging may terminate the license and you must destroy all copies of the Application/Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
7. You shall not use the Application/Software to develop any Application/Software or other technology having the same primary function as the Application/Software, including but not limited to using the Application/Software in any development or test procedure that seeks to develop like Application/Software or other technology, or to determine if such Application/Software or other technology performs in a similar manner as the Application/Software.
The foregoing license gives you limited license to use the Application/Software. Ocean Imaging and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Application/Software and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Ocean Imaging and its suppliers.
1. OCEAN IMAGING AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. OCEAN IMAGING DOES NOT WARRANT THAT THE APPLICATION/SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE APPLICATION/SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. OCEAN IMAGING SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
2. Ocean Imaging does not warrant that the Licensed Program (SeaView or SeaView Mobile) is error free or that they are/it is compatible with products manufactured by any entity other than Ocean Imaging. The Licensed Program utilizes electronic information from the Global Positioning System ("GPS"), and current data from academic institutions and official government agencies which may contain errors. Ocean Imaging does not warrant the accuracy of such information and you are advised that errors in such information may cause the Licensed Program to malfunction or give incorrect results. Ocean Imaging is not responsible for damages or injuries caused by your use or inability to use the Licensed Program, by the interaction of the Licensed Program with products manufactured by others or by errors in image data, chart data, GPS and current data or information utilized by the Licensed Programs provided by third parties.
3. WARNING REGARDING NAVIGATIONAL USE: Nautical navigation, including but not limited to navigation with views of the ocean currents, sea surface height anomalies and sea floor topography (bathymetry) is an inherently dangerous undertaking and should only be engaged in by persons trained and experienced in navigation. THIS APPLICATION/SOFTWARE AND / OR THE OCEANEYE SERVICE IS NOT INTENDED FOR USE AS A NAVIGATIONAL AID, TOOL, DEVICE OR IMPLEMENT.
4. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE APPLICATION/SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
5. NO GRAPHICAL, ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OCEAN IMAGING, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
6. (USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
7. OCEAN IMAGING SHALL HAVE NO RESPONSIBILITY IF THE APPLICATION/SOFTWARE HAS BEEN ALTERED IN ANY WAY, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE APPLICATION/SOFTWARE WITH OTHER THAN A RECOMMENDED HARDWARE CONFIGURATION, PLATFORM OR OPERATING SYSTEM.
LIMITATION OF LIABILITY
1. NEITHER OCEAN IMAGING NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE APPLICATION/SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF OCEAN IMAGING OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
2. OCEAN IMAGING'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE APPLICATION/SOFTWARE THAT CAUSED SUCH DAMAGE.
3. (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
4. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS EULA.
Basis of Bargain
The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the agreement between Ocean Imaging and you. Ocean Imaging would not be able to provide the Application/Software on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of Ocean Imaging's licensors.
U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
This Application/Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the US Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: Ocean Imaging, Inc., 13976 W. Bowles Ave. Suite 100, Littleton, CO 80127.
(Outside of the USA) Consumer End Users Only
The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
Third Party Application/Software
The Application/Software may contain third party Application/Software which requires notices and/or additional terms and conditions. Such required third party Application/Software notices and/or additional terms and conditions are displayed during the installation process and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.
This EULA shall be governed by the internal laws of the State of Colorado, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Jefferson County, Colorado or the federal courts in the Tenth Circuit Court in Denver Colorado to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Application/Software licensed hereunder shall be of no effect. The failure or delay of Ocean Imaging to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
No Ocean Imaging dealer, agent or employee is authorized to make any amendment to this EULA. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
All questions concerning this EULA shall be directed to: Ocean Imaging, Inc., 13976 W. Bowles Ave. Suite 100, Littleton, CO 80127.
Ocean Imaging and other trademarks contained in the Application/Software are trademarks or registered trademarks of Ocean Imaging, Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Application/Software. This EULA does not authorize you to use Ocean Imaging's or its licensors' names or any of their respective trademarks.