Bigfoot Networks, Inc. End User License Agreement
Please read the following terms and conditions carefully before downloading, installing or using the software, printed materials, media files, or documentation that accompanies this Agreement (collectively, the "Software"). The following terms and conditions of this end user license agreement is a legal agreement (this "Agreement") between you (either an individual or a single entity) and Bigfoot Networks, Inc. ("Bigfoot"), and governs any and all use of the Software, and the relationship between you and Bigfoot regarding the subject matter of this Agreement.
BY INSTALLING OR USING THE SOFTWARE IN ANY WAY, YOU HAVE INDICATED THAT YOU UNDERSTAND THIS AGREEMENT AND ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL, COPY, ACCESS OR MAKE ANY OTHER USE OF THE SOFTWARE.
Bigfoot does not license the Software to you in any way if you do not accept the terms and conditions of this Agreement. If you do not accept the terms and conditions of this Agreement, then:
1. Grant of License. The Software delivered to you online or incorporated into a product of Bigfoot is licensed as follows for use only with that specific product. Such products include, without limitation, the Killer® line of products that include the Killer NIC M1, Killer NIC K1, Killer Xeno Pro, and Killer Xeno Ultra (each, a “Bigfoot Product” product). Subject to your compliance with the terms and conditions of this Agreement, Bigfoot grants you a non-exclusive and non-transferable license for you, as a single user: (a) with respect to Software that requires installation, to install and operate the executable form of the Software on computers owned or controlled by you, solely for your personal, non-commercial use in connection with a Bigfoot Product owned by you; and (b) with respect to Software that is embedded in or otherwise incorporated into a Bigfoot Product, to operate the executable form of the Software on computers owned or controlled by you, solely for your personal, non-commercial use in connection with a Bigfoot Product owned by you. You may make a single copy of the Software for backup purposes, provided that you reproduce on it all copyright and other proprietary notices that are on the original copy of the Software. Bigfoot reserves all rights in the Software not expressly granted to you in this Agreement. If Bigfoot provides you with any update to the Software ("Update"), your use of such Update will be governed by this Agreement, unless Bigfoot delivers the Update with an updated license agreement accompanying the Update that governs it.
2. Restrictions. Except as expressly specified in this Agreement, you may not: (i) copy or modify the Software; (ii) transfer, sublicense, lease, lend, sublicense, lend, rent, assign, or distribute the Software (in whole or in part) to any third party; or (iii) make the functionality of the Software available to any other user through any means, including, without, limitation, by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau or any other type of services. You acknowledge and agree that portions of the Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Bigfoot and its licensors. Accordingly, you shall not modify, reverse engineer, decompile or disassemble the Software, whether in whole or in part, create any derivative works from or of the Software, or bypass, modify, defeat or tamper with or circumvent any of the functions or protections of the Software or any mechanisms operatively linked to the Software, in whole or in part, or encourage, assist, permit or authorize any other person to do so, except to the extent such activities are expressly permitted by applicable law notwithstanding this prohibition. You may only use the Software in connection with your Bigfoot Product. You may not separate any individual component of the Software for use on another product, device or computer. You may not use the Software for any illegal purpose or in a manner that infringes or impinges on the rights of others.
3. Ownership. The Software is licensed, not sold. You own the media on which the Software is recorded, but Bigfoot retains ownership of the Software, including all intellectual property rights therein. The Software is protected by the intellectual property laws of the United States of America (the “United States”) and international treaties and the copyright laws of other countries. The Software is protected by United States intellectual property law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you.
4. Open Source Software; Development Kits and APIs. Certain components of the Software are subject to the GNU General Public License Version 2, or other open source licenses ("Open Source Software"). Open Source Software is not licensed under Section 1 or subject to the restrictions in Section 2, but is subject to the license and terms of its respective open source license; provided, however, that Sections 7 through 14 of this Agreement will remain effective and apply to such licenses. In compliance with the terms of certain Open Source Software licenses like the GNU General Public License Version 2, Bigfoot makes certain modifications to Open Source Software that Bigfoot uses, modifies and distributes pursuant to such licenses available to the public in source code form at www.bigfoot.com/support. You are free to use, modify and distribute Open Source Software so long as you comply with the terms of the relevant Open Source Software license. In particular, the GPLv2 is available in the product manual or at www.gnu.org/copyleft/gpl.html.
No development kits or APIs are licensed under this Agreement. Bigfoot makes no representations or warranties for software or media files developed using its development kits or APIs, if any.
5. Support. If you encounter any problems using the Software, please contact http://www.bigfootnetworks.com/support/ for support information. You may be directed to the support services of one of our equipment manufacturers, value added resellers, or retailers depending on where you purchased your Bigfoot Product. And yes, we have to say it even though we want you to be happy, Bigfoot and its suppliers that provide support services (if any) do so AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, and of lack of negligence.
6. Termination. The license granted under this Agreement will automatically terminate without notice if you breach any term or condition of this Agreement, in which case you must promptly destroy all copies of the Software in your possession or control. Sections 2, 3, 6, and 7 through 14 will survive any termination or expiration of this Agreement.
7. Limited Warranty. Bigfoot warrants that the media on which the Software is provided will be substantially free from defects in material and workmanship for 60 days after the date of your purchase of the Bigfoot Product or otherwise receive such media. Software delivered online will carry no such warranty. Bigfoot shall replace any defective media returned to Bigfoot within that 60-day period. Except for this warranty, the Software is delivered “AS IS”. Neither Bigfoot, its distributors, resellers, or retailers warrant that the Software will meet your requirements, that the Software will operate in the combinations that you may select for use, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. The warranties set forth in this Section 7 do not apply to the extent that (i) Bigfoot provides you with the Software (or portions of the Software) for beta evaluation, testing or demonstration purposes or (ii) you have not properly used or installed the Software in accordance with the Documentation.
Your sole and exclusive remedy for breach of the limited warranty above is for Bigfoot (or its retailer, reseller or distributor, at Bigfoot’s discretion) to: (i) repair or replace the defective media; or b) if it cannot repair or replace the defective media after using commercially reasonable efforts, to refund the purchase price paid after you have returned all items purchased.
8. Disclaimer. THE LIMITED WARRANTIES SET FORTH IN SECTION 7 ARE IN LIEU OF, AND BIGFOOT EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BIGFOOT OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR CORRESPONDENCE TO DESCRIPTION WITH REGARD TO THE SOFTWARE.
The foregoing limitations will apply even if any warranty or remedy provided under this Agreement fails of its essential purpose. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction.
Other than those set out in Section 7, Bigfoot does not give any other promises, guarantees, or warranties about the Software. All warranties implied by a legally applicable statute are limited to the duration of the express warranty set forth above, unless the applicable legal jurisdiction requires a longer term for such implied warranties.
9. Limitation of Liability. BIGFOOT'S (TOGETHER WITH ITS DISTRIBUTORS, RESELLERS, AND RETAILERS) TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED, AS APPLICABLE: (A) THE LICENSE FEE PAID BY YOU FOR THE SOFTWARE THAT YOU RECEIVED ONLINE OR OTHERWISE NOT INCORPORATED INTO A BIGFOOT PRODUCT, OR US$1 (ONE DOLLAR), WHICHEVER IS GREATER; OR (B) THE PURCHASE PRICE PAID FOR THE BIGFOOT PRODUCT IF THIS AGREEMENT ACCOMPANIED SOFTWARE PACKAGED WITH A BIGFOOT PRODUCT. IN NO EVENT WILL BIGFOOT OR ITS DISTRIBUTORS, RESELLERS, OR RETAILERS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT BIGFOOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
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.
10. Additional Exceptions for Customers outside of the United States.
If you are a customer of Bigfoot that resides outside of the United States, and brings an action, claim or demand to a court outside of the United States, then this Section 10 applies to you. This Section 10 does not apply to residents of the United States or parties that bring actions, claims or demands in the United States.
Bigfoot accepts unlimited liability in respect of death or personal injury caused to you by Bigfoot's negligence to the extent required by the applicable statues of your jurisdiction, for example the Consumer Protection Act of 1987 in the United Kingdom.
Bigfoot also accepts responsibility for loss or damage to your physical property caused by the Software or arising from our deliberate misconduct or negligence to the extent required by the applicable statues of your jurisdiction. We will pay up to £10,000 in any 12-month period for this loss or damage and not more than £10,000. Bigfoot also accepts liability for direct, reasonably foreseeable (expected) losses arising as a direct consequence of its breach of an applicable statutory duty caused by its negligence with the Software, to the extent required by the applicable statues of your jurisdiction. However, Bigfoot shall not be liable in such circumstances where the causes or potential causes of the loss:
Consumers in Australia, New Zealand or Malaysia may have the benefit of certain rights and remedies by reason of the Trade Practices Act and similar state and territory laws in Australia, the Consumer Guarantees Act in New Zealand and the Consumer Protection Act in Malaysia in respect of which liability cannot lawfully be modified or excluded. If you acquired the Software in New Zealand for the purposes of a business, you confirm that the Consumer Guarantees Act does not apply.
BIGFOOT HAS NO OBLIGATION TO COMPENSATE FOR ANY FINANCIAL LOSS, LOSS OF PROFIT, ANTICIPATED SAVINGS, LOSS OF OR CORRUPTION TO DATA OR FOR ANY LOSS THAT COULD NOT HAVE BEEN REASONABLY FORESEEN (EXPECTED) CONSIDERING THE SOFTWARE IS FOR PERSONAL USE ONLY AND NOT FOR USE IN CONNECTION WITH ANY BUSINESS.
11. Government Users. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with "Restricted Rights" as provided for in FAR, 48 CFR 52.227 -14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
12. Export Law. You are advised that the Software is subject to export laws (including export laws of the United States, European Union and Hong Kong) and regulations and laws of the country where it is delivered or used. Under these laws neither the Software nor any technical data related to the Software may be sold, leased or transferred to any country or end-user prohibited by, such laws and regulations. You agree to be bound by these laws.
13. Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
14. General. If you are a VAR, OEM, distributor or sales representative (directly or indirectly) of Bigfoot, this Agreement licenses and governs only your operation of the Software, and not the terms of your business relationship (if any) with Bigfoot. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Bigfoot's prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible to preserve the original intent and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Bigfoot have executed a separate agreement pertaining to the subject matter hereof executed by an officer of the corporation. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Bigfoot and will be deemed null and of no effect.
Contact Information. If you have any questions regarding this Agreement, you may contact Bigfoot at legal@bigfootnetworks.com.
© 2009 Bigfoot Networks, Inc. All rights reserved. Bigfoot Networks, Killer®, Killer NIC®, Killer NIC M1, Killer NIC K1, Killer K1, Killer Xeno Pro, and Killer Xeno Ultra are trademarks of Bigfoot Networks, Inc.
EULA Version: 2009.06.29d