For purposes of this License Agreement, the term “Software” shall mean the accompanying, collectively: (i) the Washingtonian mobile application itself or the, (ii) any Washingtonian software you gain access to by indicating your agreementconsent to this License,Agreement, (iii) any related documentation, (iv) any updates or upgrades to thesuch mobile application and such software and that are not distributed with a separate license agreement that expressly supersedes the Agreement, and all(v) all audiovisual material—including, without limitation, images, sound, music, and content, or data incorporated in the software—in (i) through (iv) (collectively, “Protected Material”).
1. LICENSE GRANT AND OWNERSHIP OF SOFTWARE
This Software is licensed (not sold) to you by Washingtonian. Washingtonian does not transfer title to the Software to you; this License shall not be considered a “sale” of the Software. You own the media, if any, on which the Software is recorded, but Washingtonian retains full and complete title to the Software on the media and the accompanying documentation, and all intellectual and industrial property rights therein.This limited, non-exclusive, non-transferable and personal License gives you the rightSubject to the terms of the Agreement, Washingtonian grants to you a limited, revocable, personal, non-exclusive, non-transferrable, non-assignable, non-sublicensable license to install, use, and display thisone (1) copy of the Software on any authorized and compatible iPaddevice that you own or control as permitted by the applicable Usage Rules set forth in the Apple App Store termsTerms of Service. , as Apple may modify from time to time.
You acknowledge that certain Software may not be compatible with particular devices. You must treat the Software like any other copyrighted material. You may not copy the Software or theany written material accompanying the Software. A Washingtonian account may be required to access certain online services or features of the Software. Washingtonian reserves the right to deny access to this Software to any individual user or user account for any reason in its sole discretion. Washingtonian reserves the right to deny access on any device associated with an approved or unapproved user account for any reason in its sole discretion. The terms of this LicenseAgreement will govern any updates provided by Washingtonian that upgrade, replace, or supplement the original Software, unless such update is accompanied by a separate license, in which case the terms of that license will govern such update agreement that expressly supersedes this Agreement.
Washingtonian does not transfer title to the Software to you. No license granted under this Agreement shall be considered a “sale” of the Software. All rights not expressly granted to you under this Agreement, including all intellectual and industrial property rights, are reserved to Washingtonian and its licensors.
2. SOFTWARE RESTRICTIONS ON THE USE OF THE SOFTWARE
The Software contains copyrighted material, trade secrets, and other proprietary material of Washingtonian and its licensors. You may not re-sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. Except as provided for in this LicenseAgreement, you may not copy, modify, network, sublicense, rent, lease, or otherwise distribute the Software; nor can you. You may not make the Software available by “bulletin boards,” on-line services, remote dial-in, or network or telecommunications links of any kind; nor can you. You may not create derivative works or any other works that are based upon or derived from the Software, in whole or in part. This Software is for your PERSONAL, NON-COMMERCIAL, and NON-GOVERNMENTALpersonal, non-commercial, and non-governmental use only. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
3. RESTRICTIONS ON USE OF THE OUTPUT GENERATED BY THE SOFTWARE
A. Personal License/No Public Display. If the Software provides you with the ability to create, modify, print, send, and/or save images, video clips or audio clips containing Washingtonian’s content or other Washingtonian material, this License Protected Material: you acknowledge and agree that, as between you and Washingtonian, Washingtonian exclusively owns all copyrights, trademarks, and all other present and future intellectual property rights in and to the Protected Material, in any form or format. This Agreement only allows you to use such images, video clips, or audio clipsProtected Material for your own PERSONALpersonal enjoyment, and not for any commercial or governmental purpose whatsoever. Your use of the Protected Material shall inure to Washingtonian’s benefit. You shall neither acquire nor assert copyright or any other intellectual property rights in or to the Protected Material or in any derivation, adaptation, or variation thereof.
Further, you may not sell or publicly display such images, video clips, or audio clipsProtected Materials (or any material containing such images, video clips, or audio clipsProtected Material), which means, without limitation, that you are not permitted to (i) sell any material containing printed images generated by the Software, (ii) post or make available any such images, video clips, or audio clips on any publicly accessible websites, “bulletin boards,” or FTP sites, (iii) publicly transmit or publish theany images, video clips, or audio clips in any manner, or (iv) make suchany images, video clips, or audio clips accessible to others by means of networking or sharing applications. Without limiting the foregoing, you may not use imagescontent generated by the Software in connection with any advertising or promotional materials, whether for profit or not for profit. You agree further that you will preserve all copyright notices that the Software imbeds within the output of all images, video clips, or audio clips.
B. Appropriate Use. This LicenseAgreement does not authorize you to combine images containing Washingtonian’s copyrighted content or material with content that is not wholesome or that otherwise disparages Washingtonian or Washingtonian’s content, including without limitation, your creation of content that (a) contains nudity, pornography, or sexually explicit materials; (b) promotes or portrays excessive violence; (c) promotes or portrays illegal activities; (e) promotes or portrays tobacco, liquor, or gambling; (f) infringes any intellectual property rights of Washingtonian or any third party, or otherwise violates the rights of any third party; (g) contains material that is defamatory, fraudulent, or harassing to Washingtonian or any third party; (h) advocates the adoption or promotes the ideology of a specific religious or political viewpoint; or (i) is otherwise in conflict with Washingtonian’s image and reputation as determined by Washingtonian in its sole discretion.
You must provide at your own expense theall equipment, Internettelecommunications connections or, and mobile devices and/or service plans to access and use this Software. YOU ARE SOLEYSOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS APPLICATIONTHE SOFTWARE FROM YOUR MOBILE DEVICE. Washingtonian does not guarantee that thisthe Software can be accessed on all wireless devices or wireless service plans, or through all internettelecommunications connections. Washingtonian does not guarantee that this Software is available in all geographic locations. You acknowledge that when you use this Software, your wireless carrier or internettelecommunications service provider may charge you fees for data, messaging, and/or wireless access incurred incident to your use of the Software.
7. OWNERSHIP OF PROTECTED MATERIAL This Software contains audiovisual material, including, without limitation, images, sound, music and content, that are owned by or licensed to Washingtonian (collectively, the “Protected Material”). Further, the Software may allow you to create output containing the Protected Material. You acknowledge and agree that, as between you and Washingtonian, Washingtonian exclusively owns all copyrights, trademarks, and all other present and future intellectual property rights in and to the Protected Material as such material appears in the Software and on or in any output generated by the Software. Your use of such Protected Material shall inure to Washingtonian’s benefit. You shall neither acquire nor assert copyright or any other intellectual property rights in or to the Protected Material or in any derivation, adaptation, or variation thereof. Other than with respect to the Protected Material, Washingtonian claims no rights in or to any content created by you using the Software.
Use of imagesthe Software or any content or output generated by the Software for any purpose not specifically allowed by this LicenseAgreement is a violation of this LicenseAgreement, and may also violate Washingtonian’s copyrights, trademarks, and other proprietary rights, and will result in the immediate termination of this LicenseAgreement, whether or not Washingtonian is aware of such violation or whether or not Washingtonian has notified you of such violation or such termination.
This LicenseAgreement is effective until terminated by either party. You may terminate this LicenseAgreement at any time by (i) discontinuing all installation, use, and display of the Software, and (ii) returning the Software to Washingtonian or destroying the Software and all related documentation and all copies and installations thereofof the Software licensed under this Agreement, along with all content and output generated by the use of this Software. This LicenseAgreement will terminate immediately without notice from Washingtonian if you fail to comply with any provision of this LicenseAgreement. Upon termination you must destroy or return to Washingtonian the Software and related documentationall content and output generated by the Software. All rights and licenses to the Software granted under this Agreement shall terminate immediately upon termination of this Agreement.
9.7. LIMITED WARRANTY AND DISCLAIMER
THE SOFTWARE AND RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES AND/OR CONDITIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. WASHINGTONIAN EXPRESSLYWASHINGTONIAN DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, REPRESENTATIONS, WHETHER EXPRESS OR, IMPLIED, WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATIONOR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY AND, FITNESS FOR A PARTICULAR PURPOSE., AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WASHINGTONIAN SHALL CREATE A WARRANTY AND YOU MAY NOT RELY UPON SUCH INFORMATION OR ADVICE. WASHINGTONIAN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWAREANY SOFTWARE PROVIDED BY WASHINGTONIAN WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF ANY SOFTWARE PROVIDED BY WASHINGTONIAN WILL BE UNINTERRUPTED OR ERROrERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, WASHINGTONIAN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE, ANY DATA OR INFORMATION PROVIDED BY THE SOFTWARE, ANDOR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE LIMITATIONS OF LIABILITIES DESCRIBED IN THIS SECTION ALSO APPLY TO THE THIRD-PARTY SUPPLIERS OF MATERIALS USED IN THE SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE BY WASHINGTONIAN OR AN AUTHORIZED REPRESENTATIVE OF WASHINGTONIAN SHALL CREATE WARRANTIES AND/OR CONDITIONS OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY. ALL SOFTWARE IS PROVIDED BY WASHINGTONIAN “AS IS.” THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF ALL LICENSED SOFTWARE SHALL BE WITH YOU, AND YOU (AND NOT WASHINGTONIAN) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, ORAND CORRECTION.
THE DISCLAIMERS AND LIMITATIONS OF LIABILITY DESCRIBED IN THIS AGREEMENT SHALL APPLY TO THE THIRD-PARTY SUPPLIERS OF MATERIALS USED IN THE SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10.8. LIMITATION OF LIABILITY
- A. LIMITATION ON TYPE OF DAMAGES. IN NO EVENT SHALL WASHINGTONIAN OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, OR SUPPLIERS BE LIABLE TO YOU (OR TO ANY OTHER THIRD PARTY PERMITTED ACCESS TO OR USE OF ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHETHER ARISING IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM DELAY; LOSS OF GOODWILL; LOSS OF OR DAMAGE TO DATA; WORK STOPPAGE; HARDWARE FAILURE OR MALFUNCTION; LOST PROFITS, LOST REVENUE, OR LOST SAVINGS (ACTUAL OR ANTICIPATED); ANY ECONOMIC LOSS IN CONNECTION WITH OR ENSUING FROM USE OF THE SOFTWARE PROVIDED BY WASHINGTONIAN UNDER THIS AGREEMENT; OR ANY INABILITY TO USE ANY SOFTWARE PROVIDED BY WASHINGTONIAN PURSUANT TO THIS AGREEMENT, EVEN IF WASHINGTONIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- B. LIMITATION ON AMOUNT OF DAMAGES. IN NO EVENT SHALL WASHINGTONIANâ€™S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE AGGREGATE OF THE FEES PAID TO WASHINGTONIAN FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE WHEN THE CAUSE OF ACTION ACCRUED. THIS LIMITATION ON THE AMOUNT OF LIABILITY SHALL APPLY WHETHER A CLAIM ARISES IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, INCLUDING BREACH OF WARRANTY. THIS LIMITATION SHALL ALSO SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.
- C. LIMITATION ON TIME OF ACTION. NO ACTION ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
Under no circumstances, including negligence, shall Washingtonian be liable for any indirect, incidental, special, or consequential damages that result from the use of, or the inability to use, the software or related documentation, even if Washingtonian or an authorized representative of Washingtonian has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event shall Washingtonian’s total liability to you for all damages, losses, and causes of action (whether in contract, tort (including negligence), or otherwise) exceed the amount paid by you for the Software.
11. GOVERNING LAW AND SEVERABILITY
A. Compliance with Laws. You represent and agree that you will use the Software in compliance with all applicable laws, regulations, and tariffs, including, without limitation, all import and export restrictions. Washingtonian reserves the right to take all actions that it believes are necessary, in its sole discretion, to comply with applicable laws, regulations, and tariffs. You agree to discontinue any improper use of the Software promptly after receipt of written notice from Washingtonian as is reasonably feasible under the circumstances.
This LicenseB. Governing Law and Choice of Venue. This Agreement shall be governed by and construed in accordance with the laws of the District of Columbia unless local jurisdictions invalidate choice of law provisions in which case local law applies. , without reference to any conflicts of laws principles. You consent to the non-exclusive jurisdiction of the courts of the District of Columbia for any dispute arising out of this Agreement.
C. Severability. If any provision of this LicenseAgreement shall be unlawful, void, or for any reason unenforceable, then that provisions shall be deemed severable from this LicenseAgreement and shall not affect the validity and enforceability of any remaining provisions.
D. Modification. This Agreement may be modified from time to time by Washingtonian. Washingtonian will make best commercial efforts to notify you of any modification to this Agreement, such as, by e-mail, a device notification, and/or by posting on the Washingtonian’s website. Your continued use of the Software following any notification or posting of a modification to the Agreement shall mean you accept such modification. If you do not agree to any modification to the Agreement, do not use the Software.
E. Assignment. You shall not assign, transfer, or novate this Agreement, nor assign any right nor delegate any duty under this Agreement, to any third party. Any purported assignment, transfer, novation, or delegation by you shall be void. Washingtonian may assign, transfer, or novate this Agreement, or assign any right or delegate any duty under this Agreement, to any third party. Washingtonian will use reasonable commercial efforts to notify you of any such assignment, transfer, novation, or delegation by Washingtonian.
F. Entire Agreement. This is the entire agreement between the parties relating to the subject matter herein and shall not be modified except in writing, signed by both parties.