DIG-IT GAMES, LLC
SOFTWARE LICENSE AGREEMENT
READ CAREFULLY: DIG-IT GAMES, LLC (“DIG-IT!‘”) LICENSES YOU TO ACCESS AND USE THIS SOFTWARE AND RELATED SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT“).
BY SELECTING THE “I ACCEPT” BUTTON BELOW THIS AGREEMENT, OR BY ACQUIRING A SUBSCRIPTION CODE, OR REGISTERING YOUR GAME REGARDLESS OF WHETHER YOU THEREAFTER ACCESS OR USE ALL OR ANY PORTION OF THE SOFTWARE AND RELATED SERVICES, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. THIS AGREEMENT WILL BE BINDING ON YOU PERSONALLY, IF YOU ACQUIRE THE SUBSCRIPTION CODE FOR YOURSELF, OR THE COMPANY, SCHOOL OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACQUIRING ACCESS TO THE SOFTWARE.
IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU REPRESENT: (A) DO NOT ACQUIRE A SUBSCRIPTION CODE, OR ACCESS OR USE THE SOFTWARE; AND (B) SELECT THE “I REJECT” BUTTON BELOW THIS AGREEMENT (WHICH WILL CANCEL THE DELIVERY OF THE SUBSCRIPTION CODE).
ACCESS OR USE OF DIG-IT! GAMES SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION, SERVICES OR MATERIALS EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF DIG-IT!’S COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS THE SOFTWARE AND DOCUMENTATION. IF YOU ACCESS OR USE ALL OR ANY PORTION OF THIS SOFTWARE OR ITS USER DOCUMENTATION WITHOUT ENTERING INTO THIS AGREEMENT OR WITHOUT OBTAINING WRITTEN PERMISSION OF DIG-IT!, YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW, AND YOU MAY BE LIABLE FOR CIVIL DAMAGES AND YOU MAY BE SUBJECT TO CRIMINAL PENALTIES.
- 1. “Access” means to use or benefit from using the functionality of the Software.
- 2. “Dig-It! Materials” is the collective term for the Subscription Code, Software, Services and User Documentation.
- 3. “Computer” means a single electronic device with one or more central processing units (CPUs) that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions. For purposes of this Agreement, Computer includes without limitation, smart phones, PDAs, tablets, and hand-held devices capable of allowing You to Access and use the Software.
- 4. “Install” means to place a copy of Software onto a hard disk or other storage medium through any means (including, but not limited to, use of an installation utility application accompanying the Software).
1.6 “License Parameters” means the definition and limitation of the applicable license scope in Section 2.2 hereof.
- 7. “Permitted Number” means a number relevant for the applicable License Parameters that Dig-It! may specify in the applicable User Documentation. The Permitted Number is one (1) unless otherwise provided by in such User Documentation or your purchase invoice.
- 8. “Software” means the licensed Dig-It!’s game computer program, any Software accessed by Subscription Code through the Dig-It!’s website or through any Dig-It! Vendor or partner, or any Software that is delivered prepackaged with this Agreement. If programs are delivered to You as part of a bundled package, suite, or series, the term Software shall include all programs delivered to You as part of that bundled package, suite, or series and described in the User Documentation.
- 9. “Subscription Code” means a non-transferable combination of letters, numbers or symbols that allows You to access and use the licensed Game Software [from one Computer at a time][ a single Computer registered with Dig-It!]. You may not transfer, assign, disclose or permit use of the Subscription Code by any other person.
- 10. “Subscription Term” means the period of time or fixed-term from the initial purchase that a user is permitted to use the Software.
- 11. “Territory” means the country in which You acquire the Software, unless (i) you acquire the Software in a member country of the European Union or the European Free Trade Association, in which the case “Territory” means all the countries of the European Union and the European Free Trade Association; or (ii) otherwise specified in the User Documentation.
- 12. “User Documentation” means the explanatory printed or electronic materials that Dig-It! or its authorized distributor incorporates in or delivers with the Software, posts on the DIG-IT! Games website or sends to You on an invoice, via email, facsimile, or otherwise after You acquire the Subscription Code, including, but not limited to, license specifications, the Subscription Code, license files, game rules, instructions on how to use the Software, and technical specifications.
- 13. “You” means you personally (i.e., the individual who reads and is prompted to accept this Agreement) if you acquire the Software for yourself, or the school, class, company, or other legal entity for whom or through whom You acquire one or more Subscription Codes with which to access to the Software.
2. SOFTWARE LICENSE
- 1. License Grant. Dig-It! grants You a nonsublicensable, nonexclusive, nontransferable, limited license to access the Software and User Documentation [in Your Territory], in accordance with the applicable User Documentation and within the period allowed by the Subscription Term. Dig-It!’s license grant is conditioned on Your continuous compliance with all license limitations and restrictions described in this Agreement. If You violate any of these limitations or restrictions, the license grant shall automatically and immediately expire. The license descriptions in this Section 2 (Software License) define the scope of rights that Dig-It! grants to You. Any usage of the Software or User Documentation outside the scope of the applicable license grant constitutes an infringement of Dig-It!’s intellectual property rights as well as a material breach of this Agreement. No license is granted under the terms of this Agreement if You did not lawfully acquire the Subscription Code to the Software.
- 2. License Parameters. Dig-It!’s license grant is subject to one or more of the License Parameters defined in this Section 2.2 (License Parameters) as specified in the User Documentation. Unless Dig-It! expressly specifies or agrees otherwise in the User Documentation, all Software shall be governed solely by license for Stand-alone (Individual) Versions set forth in Section 2.2.1 (Stand-alone (Individual) Version).
2.2.1 Stand-alone (Individual) Version. If Dig-It! identifies the Software as a “Stand-alone Version” or as an “Individual Version” or if the User Documentation does not identify the Software by any of the version designations set forth in Sections 2.2.2 (Multi-seat Stand-alone) through 2.2.6 (Evaluation Version), You may Install and Access one (1) copy of the Software on one (1) individual Computer, solely for Your personal, non-commercial use. You may not allow the Software to be Accessed, operated, or viewed from, or Installed or uploaded to, other Computers through a network connection. Except as otherwise explicitly permitted, You may not Install or Access the Software [other than on one (1) Computer at a time.
- 2.2.2 Site Version. If Dig-It! identifies the Software as a “Multi-seat Stand-alone Version”, You and the Permitted Number of authorized users may Access the Software on the Permitted Number of individual Computers, solely for Users’ personal, non-commercial use. You may not allow the Software to be Accessed, operated or viewed from, or Installed or uploaded to, other Computers through a network connection. Except as otherwise explicitly permitted, You may not Install or Access the Software other than on the Permitted Number of Computers at any one time,
- 2.2.3 Network Version. If Dig-It! identifies the Software as a “Network Version” in the applicable User Documentation, You may Access one (1) copy of the Software on Your Computer file server, solely for Users’ personal, non-commercial use, using the Dig-It! License Manager tool (if any). The Software may be Installed on or Accessed by other Computers, or on an individual Computer, as a multiple-user installation, so long as the maximum number of concurrent users does not exceed the Permitted Number.
- 2.2.4 Educational Institutional Version. If Dig-It! identifies the Software as an “Educational Institutional Version” in the applicable User Documentation, You may Access one (1) copy of the Software on up to the Permitted Number of Computers, only for educational purposes (as further specified in the applicable User Documentation) and for no other purpose. Without limiting the foregoing, Educational Institutional Versions of the Software may not be used for commercial, professional, commercial training or other for-profit purposes. Additionally, functional limitations apply, as set forth in Section 6 (Warnings).
- 2.2.5 Student Version and Personal Learning Edition. If Dig-It! identifies the Software as a “Student Version” or “Personal Learning Edition” in the applicable User Documentation, You may Access the Software on up to the Permitted Number of Computers, only for personal learning purposes, and no other purpose. Unless otherwise provided by Dig-It! in the User Documentation, Student Versions and Personal Learning Editions of the Software may be used for a period of one (1) year from the date You first Access the Software. Without limiting the foregoing, Student Versions and Personal Learning Editions of the Software may not be used for commercial, professional or other for-profit purposes and functional limitations apply, as set forth in Section 6 (Warnings). Additionally, Student Versions may only be used by faculty, staff members and duly enrolled students at qualified educational institutions. Upon request by Dig-It!, You agree to provide proof of such enrollment.
- 2.2.6 Evaluation Version. If Dig-It! identifies the Software as a demonstration, evaluation, trial, “not for sale” (“NFS”) or “not for resale” (“NFR”) version (“Evaluation Version“) in the applicable User Documentation, You may Access the Software only for the purpose of evaluation and demonstration. Without limiting the foregoing, You may not use it for competitive analysis, or commercial, professional, or other for-profit purposes. The Evaluation Version may only be Accessed for a thirty (30) day evaluation period, unless otherwise specified by Dig-It! in writing. Additionally, functional limitations apply, as set forth in Section 6 (Warnings).
- 2.2.7 License Term. Subject to the terms and conditions of this Agreement, the license to use the Software may be perpetual or have a Subscription Term as specified in the invoice. In the case of a Subscription Term, the term of the license shall be the term identified by Dig-It! in the applicable User Documentation (the “Designated Term“) or the term for which You have paid, whichever is less. Use of the Software beyond the applicable license term, or any attempt to defeat the time-control disabling function in the Software is an unauthorized use and constitutes a material breach of this Agreement and a violation of intellectual property law.
- 3. Upgrades, Your subscription to use the Software includes any upgrades to the Software implemented by Dig-It! during the term of Your license; provided, however, that Dig-It! Reserves the right in its sole and absolute discretion to terminate support for some or all versions of the Software. If Dig-It! labels the Software in the User Documentation as an upgrade or update (“New Version“) to software previously licensed to You (“Previous Version“), then within one hundred twenty (120) days of Accessing the New Version: (i) You must cease all use of the Previous Version and uninstall all copies of the Previous Version that are Accessed on Your Computer; and (ii) upon request by Dig-It!, return any User Documentation for the Previous Version to Dig-It! or the authorized distributor from whom You acquired the Previous Version. Dig-It! reserves the right to require You to show satisfactory proof that all copies of the Previous Version have been uninstalled. For purposes of this Section, “uninstall” means to delete or remove. Dig-It! or an authorized third-party in connection with the Software licensed to You hereunder may provide You additional software that supplements or extends the Software. Such supplemental software shall be subject to the terms and conditions of this Agreement except Section 5.1 (Limited Warranty), unless otherwise specified at the time of delivery.
- 4. Crossgrades. If Dig-It! labels the Software in the User Documentation as a crossgrade (“Crossgrade“) to software previously licensed to You (also, a “Previous Version”), then within sixty (60) days of Accessing the Crossgrade: (i) You must cease all use of the Previous Version and uninstall any and all copies of the Previous Version that are Installed on Your Computer; and (ii) upon request by Dig-It!, return any User Documentation for the Previous Version to Dig-It! or the authorized distributor from whom You acquired the Previous Version. Dig-It! reserves the right to require You to show satisfactory proof that all copies of the Previous Version have been uninstalled. For purposes of this Section, “uninstall” means to delete or remove. [Again, not sure when or if this could ever happen, but I put it here for us to discuss.]
- 5. Software Components. The Software is licensed to You as a single product and its components may not be separated for Access, distribution or use on more than one (1) Computer unless expressly permitted by Dig-It! in the applicable User Documentation.
3. PERMITTED AND PROHIBITED ACTIONS 3.1 Permitted Actions.
3.1.1Backup Copy. If You have acquired a Network Version, You may Install one (1) backup copy of the Software on another file server Computer solely for backup purposes in the event that Your primary file server Computer on which the Software is Installed becomes inoperable. You may Access such backup copy of the Software only in the event and for so long as the primary file server Computer on which the Software is Installed becomes inoperable and You are otherwise unable to Access the Software.
- 2. Use Away from Usual Location.
(a) For Stand-alone (Individual) and Multi-seat Stand-alone Versions. If You have acquired a Stand-alone (Individual) Version or Multi-seat Stand-alone Versions, for each Permitted Number of Users of the Software, You may Access, solely within Your Territory, the Software on a second Computer provided that: (i) such second Computer is owned or leased by You (and not by another person, such as Your employee, if any); (ii) such second Computer is either a portable Computer or a nonserver Computer away from Your usual work location; (iii) the Software is Accessed solely for a permitted use; and (iv) the Software is Accessed only by an authorized User using that User’s own Subscription Code.
(b) VPN Access for Network Versions. If You have acquired a Network Version, You may Access the Software solely within Your Territory through a secure Virtual Private Network (“VPN”) provided that: (i) the Software is Accessed solely for a permitted use; (ii) the maximum number of concurrent Users does not exceed the Permitted Number; and (iii) the VPN connection is secure and complies with current industry standard encryption and protection mechanisms.
[Nothing in this Section 3.1.2 (Use Away from Usual Location) permits You (or any User) to Access the Software outside of the Territory.]
3.2 Prohibited Actions. Dig-It! does not permit any of the following actions and You acknowledge that such actions shall be prohibited:
- 1. Use. You may not Access or otherwise copy or use the Dig-It! Materials except as expressly authorized by this Agreement.
- 2. Reverse Engineering. You may not (and may not permit any third party to) reverse engineer, decompile, or disassemble the Software.
- 3. Transfers. You may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer the Subscription Code, or all or any portion of the Dig-It! Materials, or any rights granted in this Agreement, to any other person without the prior written consent of Dig-It!.
- 4. Hosting or Third Party Use. You may not Access, or allow Access to the Dig-It! Materials over the Internet, including, without limitation, use in connection with a Web hosting, commercial time-sharing, service bureau, or similar service, or make the Dig-It! Materials available to third parties via the Internet on Your computer system or in any other manner. The foregoing does not prohibit Network Version VPN Access in accordance with the terms of Section 3.1.2(b) (VPN Access for Network Versions).
- 5. Notices. You may not remove, alter, or obscure any proprietary notices, labels, or marks from the Dig-It! Materials.
- 1. Modifications. You may not modify, translate, adapt, arrange, or create derivative works based on the Dig-It! Materials for any purpose.
- 2. Circumvention. You may not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by Dig-It! in connection with the Software, or use the Software together with any Subscription Code, serial number, or other copy-protection device not supplied by Dig-It! directly or through an authorized distributor. [In the case of a Network Versions You may not utilize any equipment, device, software, or other means designed to circumvent or remove the Dig-It! License Manager (if any).]
- 8. Export. You may not export the Dig-It! Materials in violation of this Agreement, U.S., or other applicable export control laws.
- 9. Use Outside of Territory. You may not Access the Software or User Documentation outside of the Territory.
- 10. Exceptions from Prohibitions. The prohibitions contained in this Section 3.2 shall apply to the extent that applicable law (including laws implementing EC Directive 2009/24/EC on the legal protection of computer programs) allows such prohibition to be enforced. You shall bear the burden of proof in demonstrating that applicable law does not allow enforcement of any such prohibition.
4. ALL RIGHTS RESERVED
Except as expressly provided otherwise in this Agreement, title, ownership, and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets, and other intellectual property rights, in and to the Dig-It! Materials and any authorized copies made by You remain with Dig-It! and its licensors. The structure, organization, and code of the Dig-It! Materials are valuable trade secrets of Dig-It! and its licensors and You shall keep such trade secrets confidential. The Software and User Documentation are licensed, not sold.
5. LIMITED WARRANTY AND DISCLAIMERS
- 1. No Refund After Receipt of Subscription Code. There are no refunds once You obtain the Subscription Code with which to access the Software Product. Therefore, before you use the Subscription Code, make sure you want to Access the Game Software.
- 2. Disclaimer. DIG-IT! AND ITS LICENSORS MAKE AND YOU RECEIVE NO EXPRESS WARRANTIES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FUNCTIONALITY IN THE USER DOCUMENTATION OR ANY COMMUNICATION WITH YOU. THE USER DOCUMENTATION AND ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. IN ADDITION, DIG-IT! AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY OTHER WARRANTY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DIG-IT! DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
- 1. Functionality Limitations. Except as may be expressly stated to the contrary in this Agreement, Dig-It! shall not be liable in any manner for the consequences of the use of the Software
- 2. Subscription Code Required.
- B. The Subscription Code security features may disable Your Access to the Software if you transfer it to another Computer or if you attempt other actions to circumvent the security features.
6.3 Educational Institutional, Student Versions, and Personal Learning Editions. WORK PRODUCT AND OTHER DATA CREATED WITH EDUCATIONAL INSTITUTIONAL VERSIONS, STUDENT VERSIONS, AND PERSONAL LEARNING EDITIONS OF THE SOFTWARE CONTAINS CERTAIN NOTICES AND LIMITATIONS THAT MAKE THE DATA UNUSABLE OUTSIDE THE EDUCATIONAL USE AREA. IF YOU COMBINE OR LINK DATA CREATED WITH EDUCATIONAL INSTITUTIONAL VERSIONS, STUDENT VERSIONS, OR PERSONAL LEARNING EDITIONS OF THE SOFTWARE WITH DATA OTHERWISE CREATED, THEN SUCH OTHER DATA MAY ALSO BE AFFECTED BY THESE NOTICES AND LIMITATIONS. DIG-IT! SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER IF YOU COMBINE OR LINK DATA CREATED WITH EDUCATIONAL INSTITUTIONAL VERSIONS, STUDENT VERSIONS, OR PERSONAL LEARNING EDITIONS OF THE SOFTWARE WITH DATA OTHERWISE CREATED. [Want to get into this?]
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL DIG-IT! OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES; LOSS OF PROFITS, REVENUE, OR DATA; BUSINESS INTERRUPTION, OR COST OF COVER. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF DIG-IT! OR ITS LICENSORS FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, USER DOCUMENTATION, OR THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU FOR THE SUBSCRIPTION CODE FOR ACCESS TO THE SOFTWARE. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER ARISING OUT OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EVEN IF DIG-IT! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
DIG-IT! SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER ARISING FROM LOSS OF ACCESS TO OR THEFT OF THE SOFTWARE OR ANY MEDIA ASSOCIATED WITH THE SOFTWARE. DIG-IT! SHALL NOT BE OBLIGATED TO REPLACE ANY LOST OR STOLEN SUBSCRIPTION CODE, SOFTWARE OR MEDIA OF ANY KIND. YOU ARE SOLELY RESPONSIBLE FOR SAFEGUARDING THE SUBSCRIPTION CODE AND YOU ARE RESPONSIBLE FOR ANY ACTIONS TAKEN BY YOU OR ANYONE ELSE USING YOUR SUBSCRIPTION CODE, WHETHER AUTHORIZED OR NOT.
8. U.S. GOVERNMENT RESTRICTED RIGHTS
All Dig-It! Materials provided to the U.S. Government are provided with the same commercial license rights and restrictions described elsewhere herein.
9.1. No Assignment. This Agreement and any rights hereunder may not be assigned and any attempted assignment by You shall be void.
9.2. Choice of Law. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by the laws of the State of Maryland, U.S.A., without reference to conflict-of-laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.
- 4. Severability. If any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction.
- 5. No Waiver. No term or provision of this Agreement shall be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) shall constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach.
- 6. Audits. For any of the version designations set forth in Sections 2.2.2 (Multiseat Stand-alone) through 2.2.6 (Evaluation Version), to ensure compliance with this Agreement, You agree that upon reasonable notice, Dig-It! or Dig-It!’s authorized representative shall have the right to inspect and audit Your IAccess, and use of the Dig-It! Materials. Any such inspection or audit shall be conducted during regular business hours at Your facilities or electronically, either by Dig-It! or by representatives authorized by Dig-It! for this purpose. If such inspections or audits disclose that You have Installed, Accessed, or permitted Access to the Dig-It! Materials in a manner that is not permitted under this Agreement, then Dig-It! may terminate this Agreement immediately and You are liable to pay for any unpaid license fees as well as the reasonable costs of the audit. Any information obtained by Dig-It! or Dig-It!’s authorized representative during the course of such inspection and audit shall be used by Dig-It! solely for purposes of such inspection and audit and for enforcement of Dig-It!’s rights under this Agreement and applicable law. Nothing in this section shall be deemed to limit any legal or equitable remedies available to Dig-It! for violation of this Agreement or applicable law.
- 7. Construction. Any ambiguities in this Agreement shall not be construed against Dig-It!.