LEAPFROG ENTERPRISES, INC.
ADDITIONAL TERMS TO SUPPLEMENT THE SOFTWARE LICENSE AGREEMENT
THESE ADDITIONAL TERMS GOVERN THE PURCHASE AND USE OF THE SOFTWARE THAT YOU DOWNLOADED AND / OR HAVE LAWFULLY OBTAINED FROM LEAPFROG OR AN AUTHORIZED LEAPFROG RESELLER ("SOFTWARE") AS WELL AS THE ACCOMPANYING DOCUMENTATION (THE "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.
- ADDITIONAL SECURITY PROVISIONS. 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.
- CHANGE IN REQUIRED TERMINATION NOTICE. Notwithstanding the terms and termination provision in the prior terms, if you fail to comply with the provisions of this Agreement, LeapFrog has the right to immediately terminate this Agreement and all licenses hereunder without notice to you. This supersedes and replaces the provision stating that LeapFrog may terminate this Agreement, and all licenses hereunder, but only upon written notice.
- ADDITIONAL 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.
- 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.
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.
