Downloaded Software License Agreement

LEAPFROG ENTERPRISES, INC. DOWNLOADED SOFTWARE LICENSE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING THE SOFTWARE AND/OR DOCUMENTATION. YOU ARE NOT REQUIRED TO ACCEPT THESE TERMS. IF YOU ARE UNDER THE AGE OF 18, YOU MUST REVEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN AND MAKE SURE THAT YOUR PARENT OR GUARDIAN UNDERSTANDS THESE TERMS AND CONDITIONS.

This Software License Agreement (this "Agreement") is a legally binding instrument between you and LeapFrog Enterprises, Inc. ("LeapFrog"). It governs your use of (a) the accompanying software (the "Software") that you would be downloading and/or have lawfully obtained from LeapFrog or an authorized LeapFrog reseller and (b) any accompanying documentation (the "Documentation").

BY CLICKING ON THE "I ACCEPT THESE TERMS" (OR SIMILAR) BUTTON, DOWNLOADING OR OTHERWISE USING OR INSTALLING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OR OPERATE THE SOFTWARE. RETURN THE SOFTWARE AND THE ACCOMPANYING MATERIALS, UNUSED AND UNINSTALLED, TO THE PLACE OF PURCHASE WITHIN TEN (10) DAYS FOR A FULL REFUND. THE LICENSE GRANT HEREUNDER IS CONDITIONED UPON THE TERMS OF THIS AGREEMENT, AND LEAPFROG IS NOT WILLING TO ENTER INTO THIS AGREEMENT IF YOU ARE NOT WILLING TO ACCEPT SUCH TERMS.

OWNERSHIP. The Software (including all content contained within the Software) is owned by LeapFrog, or its licensors, and is protected by United States and international copyright and other intellectual property laws. The Software may only be used by you in accordance with this Agreement. The Software and Documentation are licensed, not sold. Except as specifically set forth herein, LeapFrog and its licensors retain all right, title and interest, including all intellectual property rights, in and to the Software and Documentation.

LICENSE TERMS. LeapFrog grants to you, subject to the terms, conditions and limitations further defined in this Agreement, a non-exclusive, non-sublicensable, non-transferable license to (i) install one (1) copy of the Software on a computer for non-commercial use, and to (ii) use the Documentation in connection with such use of the Software. A copy of the Software may be downloaded onto a maximum of two FLY Fusion™ Pentop Computers (each a "Pentop Computer"). If you are downloading the Software to an "Admin Account" (as that term is used in the FLY World Terms of Service), you may only download the Software onto two (2) Pentop Computers associated with "Pentop Computer Accounts" (as that term is used in the FLY World Terms of Service) under your Admin Account. Any upgrades, updates or error corrections to the Software provided by LeapFrog to you shall be deemed part of the Software and use thereof shall be governed by the terms and conditions of this Agreement, unless the parties have executed a separate, written agreement governing such upgrades, updates and error corrections. The version of the Software on your PC may not be entirely downloaded onto the Pentop Computer but all references to copies of the Software on a Pentop Computer shall refer to such version of the Software intended for download onto a Pentop Computer. The Software may contain open source or other third party software that requires LeapFrog to make available to you certain notices and code as well as providing you with license terms governing your rights to any such open source code. You agree that LeapFrog may provide you with all such notices, code and license terms via the website at http://www.flyworld.com/os_terms.

FLY WORLD™ REQUIREMENTS AND MONITORING. Your use of the Software is conditioned upon you being an authorized and licensed user of LeapFrog's FLY World™ application and the related FLY World service (the FLY World service and application are collectively referred to as "FLY World"). FLY World is an application and service that provides features that enhance your ability to use and manage your use of the Software and Pentop Computers and also permits LeapFrog to use technological measures to monitor and control the number of copies of the Software that may be downloaded onto and/or used on Pentop Computers. The FLY World service has its own terms of service. Use of the FLY World service is subject to the FLY World terms of service that can be found at http://www.flyworld.com/terms ("FLY World Service Terms"). By using the Software, you also agree to be bound by the most recent version of the FLY World Service Terms. You agree to install and download the Software from your computer onto a Pentop Computer while you are running the FLY World application on such computer and the FLY World application is running in "online" mode so that such computer is connected to the Internet and the World Wide Web in a manner permitting LeapFrog to exchange data with the FLY World application. Your use of FLY World will be in accordance with the software license terms governing FLY World. You agree not to download and install the Software on any Pentop Computer in a manner designed to prevent LeapFrog from monitoring the number of permitted copies of the Software that may be downloaded onto or used on Pentop Computers. Your failure to install and download a copy of the Software as required above may prevent the continued operation of the Software on certain Pentop Computers. In the event that LeapFrog believes that copies of the Software have already been installed onto two Pentop Computers and may already be used on two separate Pentop Computers, LeapFrog may take actions to prevent the use and/or installation of the Software onto additional Pentop Computers. These actions may also include (without limitation) automatically deauthorizing or uninstalling such Software from your Pentop Computers and/or FLY World application after you have already downloaded/installed them and without notice to you.

PRIVACY POLICY AND CONSENT TO USE OF DATA. The Software may be used by you in a manner that facilitates LeapFrog's collection, processing, use, and storage of certain information and data, including, but not limited to: (i) personally identifiable information about you ("PII"); (ii) technical data about your Pentop Computer, computer system, and any accompanying hardware or software ("Technical Data"), and information about your use (including offline use) of the Pentop Computer and the Software ("Usage Data"). PII, Technical Data, and Usage Data may be collectively referred to herein as "Account Data." Account Data may be captured and stored locally on your computer, and, in some instances, sent back to LeapFrog when you are connected to the Internet so we can provide you the FLY World service. LeapFrog's online collection and use of your Account Data is subject to LeapFrog's most current online privacy policy available at http://www.flyworld.com/privacy ("LeapFrog Privacy Policy"), which is expressly incorporated into this Agreement by this reference. The LeapFrog Privacy Policy describes, in more detail, the types of information LeapFrog collects from users of our Web-enabled products, the way we handle such information, and the choices you may have with respect to our collection and use of your information. You are strongly encouraged to read the LeapFrog Privacy Policy prior to and periodically during your use of the Software. By using the Software, you hereby unambiguously consent to the collection and processing of your Account Data by LeapFrog and consent to the use of such information in accordance with the LeapFrog Privacy Policy. You further agree to the transfer of this information, as necessary, across international borders, including, but not limited to, LeapFrog's headquarters in the United States.

REVISIONS AND UPDATES. You agree that LeapFrog may (but is not required to) provide modifications, updates or upgrades (including automatically-installed modifications, updates or upgrades) (collectively, "Updates") to the Software either through FLY World or some other means and thus may modify the Software that you have already installed on your computer. These Updates may include changes or improvements to the Digital Rights Management (DRM) technology or other similar security system used by LeapFrog (if any) to protect against the unauthorized copying of the Software. You agree and consent to the automatic installation or application of these Updates and to only use the most updated version of the Software provided to you by LeapFrog.

RESTRICTIONS ON REVERSE ENGINEERING AND SECURITY. You may make only one copy of the Software and Documentation onto a computer for emergency backup or archival purposes only, provided that it copies all copyright and other notices contained in the original. For purposes of protecting trade secrets in the Software, you may not and may not authorize others to reverse engineer, decompile, disassemble, translate or attempt to learn the source code of the Software except as such activities are expressly permitted under applicable law. You may not copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver or otherwise transfer the Software. You may not remove from the Software, or alter or add, any copyright, trademarks, trade names, logos, notices or markings. As indicated above, LeapFrog may implement a DRM or another similar security system that contains measures designed 1) to prevent unauthorized copying of the Software, and/or to 2) to limit use and installation of the Software to a limited number of Pentop Computers in accordance with certain usage rules imposed by LeapFrog ("LeapFrog Usage Rules"). You agree not to violate, tamper with or circumvent any such security system and measures. LeapFrog may take action to disable or affect use or access to a particular copy of this Software if LeapFrog believes that you have violated LeapFrog Usage Rules.

TERM AND TERMINATION. This Agreement, and all licenses set forth herein, are effective upon your acceptance of the terms contained herein and full payment of all amounts owed for the Software and shall continue in effect until terminated as set forth herein. You may terminate this Agreement, excluding any un-fulfilled payment obligations, at any time by destroying all copies of the Software. If you fail to comply with the provisions of this Agreement, then LeapFrog may immediately terminate this Agreement and all licenses hereunder without notice to you. Upon termination of this Agreement, you agree to destroy all copies, including the original, of the Software (together with all modifications and merged portions in any form) and the Documentation.

LIMITED WARRANTY. LeapFrog warrants to you – subject to your compliance with the terms herein – that for a period of ninety (90) days from the date of invoice for the Software, the Software will substantially conform to LeapFrog's published specifications for the Software and that the Software will be delivered on media free from material defect. Your sole and exclusive remedy under the foregoing warranty shall be for LeapFrog, at its choice, to use commercially reasonable efforts to correct any substantial non-conformity of the Software reported to LeapFrog in writing within the warranty period and/or provide a replacement copy of the Software. The foregoing warranty shall not apply to any non-conformity that is caused by (i) the use or operation of the Software with an application or in an environment other than that intended or recommended by LeapFrog, (ii) modifications to the Software not made by LeapFrog or (iii) third party hardware or software, whether provided by LeapFrog or any third party. LEAPFROG MAKES NO WARRANTIES THAT THE SOFTWARE IS ERROR-FREE OR IS SUITABLE FOR YOUR PURPOSES. LEAPFROG MAKES NO WARRANTIES OTHER THAN THOSE SET FORTH ABOVE, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LEAPFROG, ITS RESELLERS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusions and limitations may not apply to you. In such event, the scope and duration of any such warranty shall be the minimum required under applicable law.

LIMITATION OF LIABILITY. IN NO EVENT SHALL LEAPFROG OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, USE OF DATA, COST OF REPLACEMENT GOODS OR HARDWARE, OR OTHER INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF LEAPFROG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. YOU AGREE THAT IN NO EVENT WILL LEAPFROG'S AGGREGATE LIABILITY HEREUNDER OR RELATED TO YOUR USE OF THE SOFTWARE OR DOCUMENTATION EXCEED THE AMOUNT PAID FOR THE SOFTWARE. Some jurisdictions do not allow the exclusions and limitations of certain types of damages, so some of the foregoing may not apply.

ALLOCATION OF RISK. YOU ACKNOWLEDGE THAT: (I) THE LIMITED WARRANTIES, LIMITED REMEDIES AND LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT ARE A FUNDAMENTAL PART OF THE BASIS OF LEAPFROG'S BARGAIN HEREUNDER WITHOUT WHICH LEAPFROG WOULD NOT ENTER INTO THIS AGREEMENT, AND (II) THE FEES PAID FOR SUCH ITEMS REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT.

COMPLIANCE WITH LAWS. You agree to use the Software and Documentation in compliance with all federal, state and local laws and regulations including, without limitation, all U.S. federal laws governing the export or re-export of the Software or any Documentation.

U.S. GOVERNMENT END USERS. The Software is a "commercial item" 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only the rights set forth therein.

VENUE. You expressly agree that exclusive jurisdiction and venue for any claim or dispute with Leapfrog or relating in any way to your use of the Software resides in the state or federal courts of Alameda County, California. You hereby irrevocably consent to the personal and exclusive jurisdiction and venue of these courts.

MISCELLANEOUS. This Agreement is governed by the laws of the State of California, without reference to its principles of conflicts of laws. If any provision of this Agreement shall be unlawful, void, or unenforceable, then that provision shall be deemed severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions of this Agreement. This Agreement is the complete, final and exclusive statement of the agreement between the parties with respect to the subject matter hereof, and supersedes any proposal or prior or contemporaneous agreement or communications between us (whether oral or written) relating to the subject matter hereof. This Agreement may only be modified in a writing signed by both parties. No failure or delay (in whole or in part) on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof or affect any other right or remedy. Waiver of a breach shall not waive the right to enforce any subsequent breach under this Agreement. If you have any questions regarding this Agreement, you may contact LeapFrog at the address appearing on LeapFrog's website at http://www.flyworld.com/contact, via email at support@flyworld.com or via telephone at 1-800-701-5327.