NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AS EQUALLY AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.
By agreeing to participate in a market research project, you are agreeing to download a software application ("SavvyConnect" or the "Software") onto your laptop, desktop portable computer, or mobile device to allow information regarding your internet activity to be monitored, collected, stored, aggregated and distributed by Luth Research to its market research clients and any of their third party service providers as part of a market research project. In the performance of this market research project, Luth Research will abide by the Code of Standards and Ethics for Survey Research as developed by the Council of American Survey Research Organizations (CASRO).
"Luth Research" means Luth Research LLC a Delaware limited liability company, 1365 Fourth Avenue, San Diego, CA 92101.
"Software" means all of the contents of the files downloaded by You and all upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Luth Research (collectively, "Updates").
"Use", "Used" or "Using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software.
2. Software Rights of Use and Obligations.
2.1 Software License. As long as you comply with the terms of this End User License Agreement (this "Agreement"), Luth Research grants to you a non-exclusive, nontransferable, limited, personal license to Use the Software on a single laptop, desktop portable computer, or mobile device for the purpose of allowing the Software to monitor, collect, store, aggregate and distribute information regarding Your internet activity via the desktop or laptop computer, or the mobile device upon which you have installed the Software.
2.2 Warranty Disclaimer. THE SOFTWARE IS MADE AVAILABLE FREE OF CHARGE ON AN "AS IS" BASIS ONLY AND WITHOUT ANY WARRANTY OR INDEMNITY OF ANY KIND. LUTH RESEARCH DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT IT WILL CORRECT ANY PROGRAM ERRORS. LUTH RESEARCH MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE. The provisions of Sections 2.2 through 2.4 of this Agreement shall survive the termination of this Agreement, however, this shall not imply or create any continued rights to Use the Software after termination of this Agreement.
2.3 Indemnity. You agree to hold Luth Research, its licensors and suppliers harmless from any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys fees) arising out of or relating to any Use of the Software.
2.4 Limit of Liability. UNDER NO CIRCUMSTANCES WILL LUTH RESEARCH OR ANY OF ITS LICENSORS AND SUPPLIERS BE LIABLE TO YOU, OR ANY OTHER PERSON OR ENTITY, FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO YOUR USE OR RELIANCE UPON THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. THIS LIMITATION SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. LUTH RESEARCH’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY.
The Software and any authorized copies that you make are the intellectual property of and are owned by Luth Research and its licensors and suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Luth Research and its licensors and suppliers. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Luth Research and its licensors and suppliers.
4.1 Notices. You shall not copy the Software except as set forth in Section 2. Any copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
4.2 No Modifications. You shall not modify, adapt, translate, distribute, disclose or create derivative works of the Software. You shall not remove or modify any markings or any notice of proprietary rights contained on or in the Software. You shall not make the Software or the results of the Software available in any manner to any third party. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another software program, and you have first asked Luth Research to provide the information necessary to achieve such operability and Luth Research has not made such information available. Luth Research has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by Luth Research and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for such information should be directed to the Luth Research Customer Support Department.
4.3 No Transfer. You may not rent, lease, sell, sublicense, assign or transfer your rights in the Software, or authorize all or any portion of the Software to be copied onto another user's computer or mobile device except as may be expressly permitted herein.
If the Software is an Update to a previous version of the Software, you must possess a valid license to such previous version in order to Use such Update. All Updates are provided to you on a license exchange basis. You agree that by Using an Update you voluntarily terminate your right to use any previous version of the Software.
6. Export Rules.
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 (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
7. Governing Law.
This Agreement will be governed by and construed in accordance with the substantive laws in force in: (a) the State of California, if a license to the Software is acquired when you are in the United States, Canada, or Mexico; or (b) Japan, if a license to the Software is acquired when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) Ireland, if a license to the Software is purchased when you are in any other jurisdiction not described above. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of Ireland, when the law of Ireland applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8. General Provisions .
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of Luth Research. Updates may be licensed to you by Luth Research with additional or different terms. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. This is the entire agreement between Luth Research and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
9. Notice to U.S. Government End Users.
9.1 The Software and Documentation are "Commercial Item(s), " 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 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Luth Research LLC, 1365 Fourth Avenue, San Diego, CA 92101 USA.
9.2 U.S. Government Licensing of Luth Research Technology. You agree that when licensing the Software for acquisition by the U.S. Government, or any contractor therefore, you will license consistent with the policies set forth in 48 C.F.R. §12.212 (for civilian agencies) and 48 C.F.R. §§227-7202-1 and 227-7202-4 (for the Department of Defense). For U.S. Government End Users, Luth Research agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
10. SPECIFIC EXCEPTIONS.
10.1 Limitation of Liability for Users Residing in Germany and Austria.
10.1.1 If you obtained the Software in Germany or Austria, and you usually reside in such country, then Section 2.4 does not apply. Instead, subject to the provisions in Section 10.1.2, Luth Research's statutory liability for damages shall be limited as follows: (i) Luth Research shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the purchase agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation and (ii) Luth Research shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
10.1.2 The aforesaid limitation of liability shall not apply to any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee or liability for culpably caused personal injuries.
10.1.3 You are required to take all reasonable measures to avoid and reduce damages, in particular to make back-up copies of the Software and your data subject to the provisions of this Agreement.