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MICRONICS (WIZMAX) END USER SOFTWARE LICENSE AGREEMENT
1. Grant of License.
Micronics grants you a limited, non-exclusive license to (i) download, install and use the Software for your personal and internal business use on hard disks or other computer storage devices, or in the case of a software application (also referred to as “Software”), on the smartphone, tablet, or other mobile device (collectively, “Device”), provided that the Software is used (i) only in a single location (e.g., a home or office or place of business), or in the case of a mobile device, on a Device owned or otherwise controlled by you, and (ii) only in connection with Micronics Hardware owned by you. You may allow other users of the Micronics Hardware connected to your network to use the Software, provided that you shall ensure that such users use the Software only in accordance with this Agreement. You agree to be responsible for and indemnify Micronics for liabilities incurred as a consequence of use by such users. You may make backup copies of the Software, as necessary, provided the backup is only used to support your use of the Micronics Hardware.
2. Upgrades and Updates.
If you acquire an upgrade, updated version, modified version, or additions to or for the Software from Micronics, the upgrade, updated version, modified version, or addition, shall be included in the defined term Software and governed by this Agreement. You acknowledge that Micronics has no obligation to provide you with any Updates (as defined below in this Section 2) to the Software. Micronics may, however, from time to time, issue updated versions of the Software and the Software may automatically connect to Micronics or third-party servers via the Internet to check for available updates to the Software, such as bug fixes, patches, upgrades, additional or enhanced functions, plug-ins and new versions (collectively, “Updates”) and may either (a) automatically electronically update the version of the Software that you are using on your personal device or (b) give you the option of manually downloading applicable Updates. If you installed the Micronics Software Updater and do not wish to allow Micronics to check for available updates to the Software, you may disable this feature by uninstalling Micronics Software Updater. By installing the Software and not disabling any automated check for Updates, if applicable, you hereby agree and consent to automatically request and receive Updates from Micronics or third-party servers, and that the terms and conditions of this Agreement shall apply to all of these Updates.
3. Other Rights and Limitations.
You agree not to modify, adapt or translate the Software and further agree not to attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You may not rent, lease, distribute, lend the Software to third parties or incorporate the Software into a revenue generating product or service. You may, however, transfer all of your rights to use the Software to another person or legal entity, provided that the recipient also agrees to the terms of this Agreement and you transfer the Software, including all copies, updates and prior versions, and the Micronics Hardware, to such person or entity. The Software is licensed as a single unit, and its component programs may not be separated for some other use. Further, you agree not to place the Software onto or into a shared environment accessible via a public network such as the Internet or otherwise accessible by others outside the single location referred to in Section 1 above.
Title, ownership rights, and intellectual property rights in and to the Software shall remain with Micronics or its licensors and suppliers. The Software is protected by United States Copyright Law, copyright laws of Korea and international copyright treaties, as well as other intellectual property laws and treaties. There is no transfer to you of any title to or ownership of the Software and this License shall not be construed as a sale of any rights in the Software. You agree not to remove or alter any copyright, trademark, registered mark and other proprietary notices on any copies of the Software. Micronics and/or its licensors and suppliers reserve all rights not granted. The Software may also contain images, illustrations, designs and photos (“Materials”), and the copyright of such material belongs to Micronics and/or its licensors and suppliers, protected by national and/or international intellectual property laws, conventions and treaties. For clarity, (1) the Materials shall be used for non-commercial purposes only, (2) the Materials shall be edited, adjusted and copied only in the manner designated by the Software, and (3) you may use the Materials only for lawful personal use, home use or as otherwise legally permitted.
5. Open Source and Other Third-Party Components.
Notwithstanding the foregoing license grant, you acknowledge that certain components of the Software may be covered by third-party licenses, including so-called “open source” software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (such third-party components, “Third-Party Components”). A list of Third-Party Components, and associated license terms (as required), for particular versions of the Software is indicated at the end of this Agreement, relevant user manual/CD, or the license information displayed on your Device/in Software. To the extent required by the licenses covering Third-Party Components, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Third-Party Components prohibit any of the restrictions in this Agreement with respect to such Third-Party Components, such restrictions will not apply to such Third-Party Component.
6. Multiple Versions of Software.
You may receive or obtain the Software in more than one version (e.g. for different operating environments; two or more language translation versions; downloaded from an Micronics server or on a CD-ROM), however, regardless of the type or number of copies you receive, you still may use only the media or version appropriate for the license granted in Section 1 above.
7. Disclaimer of Warranty and Remedy.
If you obtained the Software by media from Micronics or a dealer, Micronics warrants that the media on which the Software is recorded will be free from defects in workmanship and materials under normal use for a period of 90 days from the date of delivery to you. If the media is returned to Micronics or the dealer from which the media was obtained within 90 days of the date of delivery to you, and if Micronics determines the media to be defective and provided the media was not subject to misuse, abuse, misapplication or use in defective equipment, Micronics will replace the media, upon your return to Micronics of the Software, including all copies of any portions thereof. You acknowledge and agree that the use of the Software is at your sole risk. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND. MICRONICS AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. Micronics does not warrant that the operation of the Software will be uninterrupted, error free, free from viruses or other harmful components or vulnerabilities, or that the functions of the Software will meet your needs or requirements. Micronics’s sole and exclusive liability and your exclusive remedy for breach of warranty shall be limited to either, at Micronics’s option, the replacement of the media for the Software or to refund your money upon returning the Software and Micronics Hardware. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. If the above remedy fails for any reason, Micronics’s entire liability for a breach of warranty shall be limited to a refund of the price paid for the Micronics Hardware. Micronics is not liable for performance delays or for nonperformance due to causes beyond its reasonable control. This Limited Warranty is void if failure of the Software resulted from accident, abuse, or misapplication. THE STATED LIMITED WARRANTIES AND REMEDY ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS. MICRONICS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS, HOWEVER, DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, AND IN SUCH STATES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MICRONICS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, WHATSOEVER, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ARISING OUT OF THIS AGREEMENT, EVEN IF MICRONICS OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TRANSACTIONS, AND IN SUCH STATES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
9. U.S. Government Acquisition of the Software.
This Section applies to all acquisitions of the Software by or for the U.S. Government (“Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, “other transaction” (“OT”), or other activity with the Government. By accepting delivery of the Software, the Government, any prime contractor, and any subcontractor agree that the Software qualifies as “commercial” computer software within the meaning of FAR Part 12, paragraph (b) of FAR Subpart 27.405, or DFARS Subpart 227.7202, as applicable, and that no other regulation, or FAR or DFARS data rights clause, applies to the delivery of this Software to the Government. Accordingly, the terms and conditions of this Agreement govern the Government’s (and the prime contractor and subcontractor’s) use and disclosure of the Software, and supersede any conflicting terms and conditions of the contract, grant, cooperative agreement, OT, or other activity pursuant to which the Software is delivered to the Government. If this Software fails to meet the Government’s needs, if this Agreement is inconsistent in any respect with Federal law, or if the above cited FAR and DFARS provisions do not govern, the Government agrees to return the Software, unused, to Micronics.
10. Export Restriction.
You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
11. Entire Agreement.
This Agreement is the entire agreement between the parties related to the Software and supersedes any purchase order, communication, advertisement, or representation concerning the Software.
12. Binding Agreement; Assignees.
This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, assigns and legal representatives.
13. Severability; Modifications.
If any provision herein is found void or unenforceable by a court of competent jurisdiction (subject to Section 22.8 and 22.9 if you are a located in the U.S.), it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in writing signed by an authorized representative of Micronics.
You agree that you will indemnify and hold harmless, and upon Micronics’s request, defend Micronics and its directors, officers, shareholders, employees and agents from and against any and all losses, liabilities, damages, costs, expenses (including reasonable attorneys’ fees), actions, suits, and claims arising from (i) any breach of any of your obligations in this Agreement or (ii) any use of the Software or the Micronics Hardware. If Micronics asks you to defend any such action, suit or claim, Micronics will have the right, at its own expense, to participate in the defense thereof with counsel of its choice. You will not settle any third-party claims for which Micronics is entitled to indemnification without the prior written approval of Micronics.
Without prejudice to any other rights Micronics has, your license rights under Section 1 above and your warranty rights under Section 7 above, shall automatically terminate upon failure by you to comply with this Agreement. Upon termination of such rights, you agree that the Software, and all copies thereof, will be immediately destroyed.
16. Capacity and Authority to Contract.
You represent that you are of the legal age of majority in your state or jurisdiction of residence and have all necessary authority to enter into this Agreement, including, if applicable, due authorization by your employer to enter into this Agreement.
17. Privacy, Information Processing.
18. Third Party Websites.
You may, through hypertext or other computer links from the Software, gain access to websites and use certain services that are not under the control of or operated by Micronics, but rather are controlled by third parties. You acknowledge and agree that Micronics is not responsible for such third party sites or services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. These third party websites/services are subject to different terms and conditions and when you access and use third party websites/services, you will be legally bound by the terms and conditions of those websites/services. If there is a conflict between this Agreement and terms and conditions of third party websites/services, the third party websites’/services’ terms and conditions will govern with respect to your access and use of those websites/services. Although Micronics may provide a link to a third party website/service from the Software, such a link is not an authorization, endorsement, sponsorship or affiliation by Micronics with respect to such website/services, its content, its owners or its providers. Micronics provides such links for your reference and convenience only. Accordingly, Micronics makes no representations whatsoever concerning such websites/services and does not provide any support related to such third party sites or services. Micronics has not tested any information, products or software found on such websites/services and therefore cannot make any representations whatsoever with respect thereto. You agree that Micronics is not responsible for the content or operation of such websites/services, and it is up to you to take precautions to ensure that whatever you select is free of items such as viruses, worms, Trojan horses and other items of a destructive nature. You are solely responsible for determining the extent to which you may use any content at any other websites/services to which you link from this Software.
(IF YOU ARE LOCATED IN THE UNITED STATES, THE FOLLOWING SECTIONS 19 - 23 APPLY TO YOU)
19. Downloadable Updates.
20. Micronics Accounts and Promotional Messages.
In addition, if you install the Software and register your Micronics Hardware with Micronics, and/or you create an account at the Micronics Store, and provided your consent to such use, you agree that Micronics may merge the data collected in connection with installation of the Software, registration of your Micronics Hardware and/or creation of your Micronics Store account, consisting of personal information and non-personally identifiable information, and use such merged data to send you Micronics promotional or service information. If you do not wish to send information about your Micronics Hardware or receive promotional or service information, you will be able to disable these features on a Windows system through the Monitoring Preferences section in the driver.
21. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
The terms of this Section 21 shall apply to all Disputes between you and Micronics. The term “Dispute” is meant to have the broadest meaning permissible under law and includes any dispute, claim, controversy or action between you and Micronics arising out of or relating to this Agreement, the Software, Micronics Hardware, or other transaction involving you and Micronics, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. “DISPUTE” DOES NOT INCLUDE IP CLAIMS, or more specifically, a claim or cause of action for (a) trademark infringement or dilution, (b) patent infringement, (c) copyright infringement or misuse, or (d) trade secret misappropriation (an “IP Claim”). You and Micronics also agree, notwithstanding Section 21.6, that a court, not an arbitrator, may decide if a claim or cause of action is for an IP Claim.
21.2 Binding Arbitration.
You and Micronics agree that all Disputes shall be resolved by binding arbitration according to this Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. Pursuant to this Agreement, binding arbitration shall be administered by JAMS, a nationally recognized arbitration authority, pursuant to its code of procedures then in effect for consumer related disputes, but excluding any rules that permit joinder or class actions in arbitration (for more detail on procedure, see Section 21.6 below). You and Micronics understand and agree that (a) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section 21, (b) this Agreement memorializes a transaction in interstate commerce, and (c) this Section 21 shall survive termination of this Agreement.
21.3 Pre-Arbitration Steps and Notice.
Before submitting a claim for arbitration, you and Micronics agree to try, for sixty (60) days, to resolve any Dispute informally. If Micronics and you do not reach an agreement to resolve the Dispute within the sixty (60) days, you or Micronics may commence an arbitration. Notice to Micronics must be addressed to: Micronics, Inc., ATTN: #602 (Gaming Gear Div.), Byucksan Digital Valley 5th, 244, Beotkkot-Ro, Geumcheon-Gu, Seoul, 08513 South Korea (the “Micronics Address”). The Dispute Notice to you will be sent to the most recent address Micronics has in its records for you. For this reason, it is important to notify us if your address changes by emailing us at email@example.com or writing us at the Micronics Address above. Notice of the Dispute shall include the sender’s name, address and contact information, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). Following receipt of the Dispute Notice, Micronics and you agree to act in good faith to resolve the Dispute before commencing arbitration.
21.4 Small Claims Court.
Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
21.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS.
YOU AND MICRONICS AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
21.6 Arbitration Procedure.
If you or Micronics commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class or representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for an IP Claim, which is excluded from the definition of “Disputes” in Section 21.1 above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator may award you the same damages as a court could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In some instances, the costs of arbitration can exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction.
You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in, All State in U.S.A at your option.
You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class and representative proceedings specified in this Agreement by sending a written letter to the Micronics Address within thirty (30) days of your assent to this Agreement (including without limitation the purchase, download, installation of the Software or other applicable use of Micronics Hardware, products and services) that specifies (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section 21. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply, including the requirement to provide notice prior to litigation.
21.8 Amendments to Section 21.
Notwithstanding any provision in this Agreement to the contrary, you and Micronics agree that if Micronics makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Micronics’s address) in this Agreement, Micronics will obtain your affirmative assent to the applicable amendment. If you do not affirmatively assent to the applicable amendment, you are agreeing that you will arbitrate any Dispute between the parties in accordance with the language of this Section 21 (or resolve disputes as provided for in Section 21.7, if you timely elected to opt-out when you first assented to this Agreement).
If any provision in this Section 21 is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions as provided in Section 21.5. This means that if Section 21.5 is found to be unenforceable, the entire Section 21 (but only Section 21) shall be null and void.