END USER LICENSE AGREEMENT
FOR derive power tuning PRODUCTS designed for U.S./Canadian vehicles
READ THIS END USER LICENSE AGREEMENT (this “Agreement”) CAREFULLY BEFORE INSTALLING AND/OR USING YOUR DERIVE TUNING DEVICE. BY INSTALLING AND/OR USING THE PRODUCT, YOU AGREE TO BE BOUND BY THESE TERMS.
1. Definitions. The capitalized words and phrases used and not otherwise defined in this Agreement shall have the following meanings:
“Aggregated Statistics” means aggregated data and information stored or processed by the Product and Product IP in each case where no Customer Data is specifically included in the aggregation.
“Customer” means the first purchaser of the Product who puts it into service.
“Derive” means Derive Systems, Inc., Derive Power, LLC, and Derive Efficiency, LLC.
“Customer Data” means the Customer’s log file and any other information belonging or relating to the Customer and/or other Users which may include Personal Information and each such User’s specific usage information (such as IP address, device identifier, viewing of categories and parameters, etc.), in each case input by or on behalf of the Customer or a User. Except for purposes of Section 8 below, the term “Customer Data” does not include, without limitation, (a) information and data that is required by law to be collected when not combined with any personally identifiable information about the User, (b) information or data that is used by Derive for providing support and maintenance of the Product and/or Product IP, or in a manner that does not disclose Customer Data to any third parties, (c) data obtained by Derive from third parties, and (d) Aggregated Statistics.
“Personal Information” means personally identifiable information (e.g., name, phone number, email address, mailing address, etc.) of a User.
“Product” means the SCT or Bully Dog branded electronic automotive tuning device and all of its accessories, parts and components, including any embedded Product IP.
“Product IP” means all or any portion of Derive’s intellectual property and/or proprietary information, associated with any Product regardless of form or medium, including but not limited to software, firmware and vehicle calibrations, together with any improvements, modifications, derivative works, updates or upgrades.
“Users” includes the Customer and any employees, representatives and other users authorized by the Customer to use the Product and Product IP.
2. License Grant. Derive hereby grants to the Customer, subject to the terms and conditions of this Agreement, a non-exclusive, nontransferable, limited right and license to use the Product IP solely for the intended Product use as described in the Product materials. All rights not expressly granted to the Customer in this Agreement are reserved to Derive. Except as expressly provided in the first sentence of this Section 2, no right, title, interest or license to the Product IP or any other trademark, service mark, logo or any other intellectual property of Derive is granted to the Customer by this Agreement.
3. License Restrictions. Without limiting the reservations of rights in Section 2 above, the Customer will NOT: (a) use the Product IP for any purpose other than its intended use; (b) sell, resell, rent, lease, encumber, transfer, sublicense, distribute, redistribute, copy, reproduce, modify or share the Product IP (except that the Customer may resell the Product in its original state to a secondary end-user subject to the terms of this Agreement); (c) disassemble, decompile, or reverse engineer the Product IP or otherwise attempt to discover the source code and/or other trade secrets of Derive; (d) use or allow the use of the Product IP in contravention of any federal, state, local, foreign or other applicable laws, rules or regulations; (e) make any modification, adaptation, improvement, enhancement, translation, or derivative work of or to the Product IP; (f) remove, alter, or obscure any proprietary notices (including copyright notices) of Derive or its suppliers in the Product IP; (g) use the Product IP for purposes for which it is not designed, including but not limited to using any pre-loaded tune files (which are designed/calibrated for vehicles manufactured for use in the US and/or Canada) on any vehicle(s) that are manufactured for use outside of the US and Canada; or (h) use any adjustable options on the Product (g., removal of speed limiter on a vehicle) without first installing tires and other applicable parts and equipment that are tested and rated to safely handle the additional speed. The Customer further understands, agrees and acknowledges that (i) notwithstanding the ability of this Product to increase the vehicle’s speed and/or power, it is at all times the Customer’s responsibility to operate the vehicle in a safe and lawful manner and (ii) this Product is purposely designed by Derive to have a limited number of authorized uses and the Customer (including any subsequent purchaser or user of the Product) is expressly prohibited from unlocking the Product or otherwise taking (or causing or permitting anyone else to take) any other measures to increase or delimit the number of uses of the Product.
4. Patches and Upgrades. In the event that Derive becomes aware of an error in the software included in the Product IP, it may, but shall not be required to, provide the Customer with a patch or supplement to correct such error at no charge to the Customer. Derive may, from time to time during the term of this Agreement, make certain updates to the software and/or documentation available for purchase by the Customer via Derive’s website. The content, functionality and price for any such upgrades shall be determined by Derive, in its sole discretion. The Customer shall not be obligated to purchase any such upgrades; provided, however, that the Customer acknowledges that Derive may, in its sole discretion, elect to support only the most current and/or upgraded version of the software.
5. Ownership and Protection of Product IP. The Product IP and all rights therein shall be the exclusive property of Derive. The Customer agrees to take all reasonable steps to protect the Product IP from unauthorized copying or use.
6. Term and Termination of License. Derive may terminate the license provided in Section 2 above and the Customer’s right to use the Product IP for any reason without notice to the Customer. If the Customer violates any provision of this Agreement, the Customer’s license to use the Product IP shall automatically terminate and the Customer must immediately cease using the Product IP and remove all copies of any software from his, her or its computer(s) and/or server(s).
7. Warranty and Product Support. The Product is subject to the terms and conditions set forth in Derive’s Limited Warranty for SCT and Bully Dog Tuning Products which can be found on Derive’s website at derivesystems.com. During the term of this Agreement, Derive will provide the Customer with basic telephone support as to the use of the Software; provided, however, that Derive will not provide any support for the use of the software with any products or hardware other than those supplied by Derive and shall not be obligated to resolve any problems caused by Derive’s computer equipment or any other programs installed on such equipment. In the event that Derive is not able to resolve any problems with the software or hardware after it has made commercially reasonable efforts to do so, either Derive or the Customer may immediately terminate this Agreement.
8. Customer Data. The Customer hereby grants to Derive a perpetual, royalty-free, transferable license and right to use, disclose, and archive Customer Data including, without limitation, Personal Information, provided that Derive shall first aggregate all such Customer Data prior to any disclosure to third-parties not bound by a written confidentiality agreement. If Customer directs Derive to disclose Customer Data to a third party, the Customer shall provide Derive with written authorization to do so and bear any risk of loss or liability associated with that disclosure. In addition, Derive shall be held harmless from any claim resulting from the third party’s use of that Customer Data, and may, in its discretion, require the third party to enter into a written agreement with Derive governing disclosure of that Customer Data. As between Derive and the Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Derive. The Customer acknowledges that Derive will be (i) compiling Aggregated Statistics based on Customer Data, other information, and information input by the Customer and Users into the Software, and (ii) selling or otherwise distributing such Aggregated Statistics to third parties, including without limitation to other licensees.
9. Lawful Uses. The Customer covenants that the Customer’s use of the Product will at all times be limited to lawful uses consistent with this Agreement. The Customer irrevocably consents to the disclosure of the Customer’s identity to any governmental entity responsible for regulating emissions and/or enforcing emissions laws. Unless the packaging for this Product specifically identifies an applicable Executive Order (or “E.O.”) issued by the State of California’s Air Resources Board, the Customer shall not use the Product on any pollution-controlled motor vehicle titled and/or registered in the State of California. Derive expressly reserves the right to modify and/or extend this prohibition, by written notice to the Customer, to residents of, or motor vehicles registered in, other states or jurisdictions.
10. Compliance with Laws. The Customer shall abide by all applicable laws in the place of sale and/or intended use, including but not limited to (a) copyright laws, including but not limited to the Digital Millennium Copyright Act, (b) applicable state and federal emissions, vehicle safety and traffic laws, and (c) regulations regarding the use of a part or component where the principal effect is to bypass, defeat or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with U.S. federal Clean Air Act and/or California state (or any other state) environmental law(s). The Customer acknowledges and agrees that emissions-control deleting or disabling tuning files and other products are only for sale or use where emissions equipment is not required by law. Without limiting the generality of the foregoing sentence, use of such products on public streets, roads or highways in the United States is a violation of federal and certain state environmental laws.
11. Exclusion of Consequential and Other Damages. DERIVE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY INDIRECT, SPECIAL, WARRANTY, WHETHER RESULTING FROM NONDELIVERY OR FROM THE USE, MISUSE, OR INABILITY TO USE THE PRODUCT OR FROM DEFECTS IN THE PRODUCT OR FROM THE NEGLIGENCE OR OTHER TORT OF DERIVE. THIS EXCLUSION COVERS, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, ADDITIONAL COSTS INCURRED BY CUSTOMER. FURTHER, THE PRODUCT IP IS SUBJECT TO CHANGE OR WITHDRAWAL AT ANY TIME WITHOUT NOTICE TO THE CUSTOMER. DERIVE SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT IP, EVEN IF DERIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCT IP, LOSS OF DATA, FAILURE TO STORE, NONDELIVERY OR UNTIMELY DELIVERY OF ANY INFORMATION OR DATA, OR COSTS OF RECREATING LOST OR OVERRIDDEN DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM. THE CUSTOMER SHALL NOT MAKE ANY CLAIMS AGAINST DERIVE OR ITS DERIVES FOR LOST OR OVERRIDDEN DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS, DAMAGE TO EXISTING DERIVE PRODUCTS OR TO VEHICLES AND OTHER ELECTRONIC EQUIPMENT, COSTS RELATED TO ANY OF THE AFOREMENTIONED, COST OF SUBSTITUTE EQUIPMENT OR SOFTWARE, OR LOST PROFITS RESULTING FROM THE CUSTOMER’S USE OF THE PRODUCT IP.
12. Indemnification. The Customer agrees to indemnify, defend and hold Derive harmless from any claim arising out of or related to the Product or the Product IP or its use, installation, or service.
13. Applicable Law; Venue. This Agreement will be governed by the internal laws of the State of Florida, excluding the application of its conflicts of law rules. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. In any action or proceeding arising in whole or part from this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Venue for any such action or proceeding shall be in a state or federal court of competent jurisdiction located in or having jurisdiction over Sanford, Florida. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. Pertinent state law shall control for what period of time following the sale a consumer may seek a remedy under the implied warranty of merchantability or fitness for a particular purpose. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. Also, some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
14. Severability; Entire Agreement. If any part of this Agreement is found to be void or unenforceable, then the remainder shall have full force and effect, and the invalid provision shall be partially enforced to the maximum extent permitted by law to effectuate the purpose of the Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior oral and/or written agreements between Derive and Customer concerning the Product. Any prior or extrinsic representations or agreements are intended to be discharged and nullified. No amendment, modification, or waiver of this Agreement will be valid unless set forth in a written instrument signed by Derive and the Customer.